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

Individual Case (CAS) - Discussion: 2021, Publication: 109th ILC session (2021)

Written information provided by the Government

The Government has provided the following written information, as well as copies of the Law on Amendments to the Law on Trade Unions and its explanatory note.

Cambodia, through its ratification of the ILO’s Convention No. 87, is committed to uphold and promote freedom of association and to protect the right to organize. In this connection, the Ministry of Labour and Vocational Training (MLVT) of the Kingdom of Cambodia would like to provide updates on the application of Convention No. 87 as follows:

1. Allegation made by Education International

We regret that Mr Rong Chhun was arrested on 31 July 2020. We would like to take this opportunity to highlight that he was arrested for his activities along the border with intent to incite social disorder, chaos, and upheaval affecting national security, which were not related to exercising trade union activities.

We share the same regret concerning the other members of the Cambodia Independent Teachers’ Association (CITA) and its President named in the observation of Education International in October 2020. The cases are under judicial proceedings, and we will be able to provide detailed information and updates on the cases once we receive them from the Court via the Ministry of Justice (MoJ).

As guaranteed by the Constitution, all Cambodian citizens are treated equally before the law regardless of their political affiliation, profession or social status, and so on. Detainees or prisoners are prosecuted and convicted not because of who they are, but because of offences they have committed.

Cambodia is making the utmost efforts to ensure a conducive environment for the exercise of trade union rights free from violence and intimidation; however, legitimate union rights should not be construed as a shield for law-breakers, which denigrates the rule of law and undermines law-abiding citizens.

2. Allegation made by the International Trade Union Confederation

Following the receipt of the observation made by the International Trade Union Confederation dated 1 September 2019 concerning the allegedly violent repression of strikes by hired criminals and the detention of union leaders organizing strike action in the garment sector, the Ministry of Labour and Vocational Training (MLVT) has contacted both the workers and factories in question to gather detailed information. However, it takes time to get feedback from them during the pandemic. Additional information will be submitted to the Committee in our report in reply to the direct request.

3. Trade union rights and civil liberties

Murders of trade unionists

With the latest updates concerning Case No. 2318 that we shared with the Committee on Freedom of Association in our communication dated 31 January 2020, there is no further update due to the COVID‑19 pandemic.

Incidents during the January 2014 demonstrations

As previously reported, the MLVT and the MoJ have established a working group and requested the concerned trade unions to provide information on their court cases so that the MLVT and MoJ can follow up with the court in order to expedite the settlement in accordance with the applicable legal procedures. With respect to these pending cases, the courts have encountered certain challenges, in particular the lack of collaboration by the parties, and the complex nature of the criminal cases, which necessitate further investigation. Some involve civil damages which require mutual consent from both claimants and respondents to end the civil complaints. The MLVT and the MoJ will further provide legal support to the parties to wrap up all the outstanding cases in full accordance with the prevailing legal procedures.

Training of police forces in relation to industrial and protest action

ln October 2019, the MLVT, in collaboration with the Ministry of Interior, the ILO, and the Office of the United Nations High Commissioner for Human Rights-Cambodia (OHCHR­Cambodia), organized a two-day training of trainers (ToT) on “the Rights to Strike and Peaceful Demonstratíon” conducted in four sessions with 128 participants and follow-up training on “the Rights to Strike and Peaceful Demonstration” with 30 participants, who were police officers from the General Commissariat of National Police, to contribute to promoting freedom of association and harmony in industrial relations. The subjects of the training included the notions of labour disputes, labour dispute settlement, the notions of strikes, demonstrations and riots, preventive measures for strikes and demonstrations, mechanisms for strike and demonstration settlement, the international and national legal framework for peaceful assembly, and the definition, objectives and scope of the Law on Peaceful Demonstration.

4. Legislative issues: Law on Trade Unions

The MLVT would like to report that the Law on Amendments to the Law on Trade Unions (LTU) was promulgated on 3 January 2020; a copy of the Law on Amendments to the LTU and its explanatory note are attached for your consideration.

Right to organize and join trade unions of the civil servants, including teachers

We would like to reiterate that, in line with Convention No. 87, the Law on Association and Non-Governmental Organizations (LANGO) and the LTU were adopted to promote freedom of association and provide the same rights and benefits for both workers and employers in private and public sectors.

The amended Article 3 includes within its scope domestic workers, personnel working in air and maritime transportation and those who work in the informal sector. Therefore, domestic workers, workers in the informal economy and teachers who are not civil servants are free to form a workers’ union of their own choice to promote or protect their interests as long as the conditions stipulated under the LTU are satisfied.

On 6 July 2020, the working group in charge of amendments to the LANGO of the Ministry of the lnterior held a final meeting with CSOs after six consecutive meetings. As a result of the final meeting, the CSOs requested amendments to 17 articles of the LANGO. The working group will review the legality of the proposed amendments to the 17 articles.

Khmer literacy requirement

In the Cambodian context, in particular to promote harmonious industrial relations, Khmer literacy is a requirement for foreign nationals who want to be trade union leaders and this requirement is not incompatible with Convention No. 87. The agreement on this requirement has been reached following discussions in tripartite consultative workshops, and in practice no concerns have been raised with respect to this issue.

Dissolution of trade unions by the courts after the complete closure of enterprises/establishments under new article 28

The amendment was made in accordance with the comments of the Committee of Experts and the suggestion of the trade unions during the tripartite consultation workshops. Under the amended provision, a local worker union will not be dissolved immediately when the enterprise is closed; it will be dissolved when the employer’s obligations towards the workers have been fulfilled in accordance with the court decision. This provision is aimed at determining requirements when a workers’ union no longer maintains or possesses legal personality and this concern no longer exists in practice.

Right to request dissolution under new article 29

We would like to clarify that, according to the legal provision, a request made by a party concerned or 50 per cent of a union’s members is not a ground for dissolution of a trade union by the courts. As set forth under the same article, the court may decide to dissolve an organization if it is found that the ground for dissolution is satisfied and the organization fails to rectify its shortcomings within a time frame set by judicial discretion.

5. Application of the Convention in practice: lndependent Adjudication Mechanism

The MLVT would like to reaffirm our commitment to supporting the Arbitration Council, with both technical and financial support from stakeholders to ensure the sustainability of this institution. The Ministry’s commitment is shown, among others, through the current draft amendment to the Labour Law, which is under examination, to extend the scope of the Arbitration Council to settle individual labour disputes. However, the large number of individual disputes and collective labour disputes will outweigh the capacity of this institution. Therefore, we need support from all stakeholders to sustain the effective functioning of this institution.

We would like to highlight that, to ensure the effective enforcement of binding awards, the Labour Law requires enforceable arbitral awards to be registered in the same way as a collective agreement.

The Ministerial Regulation (Prakas) on the Arbitration Council also enables a party, in case of non-compliance with a binding arbitral award, to file a request with the court for its recognition and enforcement.

Discussion by the Committee

Government representative, Secretary of State, Ministry of Labour and Vocational Training (MLVT) – First of all, my delegation wishes to join other distinguished delegates in warmly congratulating you and the Vice-Chairperson for being selected to lead the Committee. There is no doubt that the Committee is a cornerstone of the ILO supervisory system and has played an important role in ensuring the application of international labour standards. So too does the Royal Government of Cambodia, which is committed to ensuring that all rights and obligations enshrined in all relevant international instruments ratified by Cambodia are honoured. As a country with outstanding records of ratification of all core international labour Conventions, Cambodia is committed to cooperating closely and constructively, based on mutual respect, with all social and development partners, to ensure the protection of labour rights and harmonious industrial relations, to maintain peace and stability and to further boost the economic development of Cambodia.

Therefore, with the above spirit in mind, Cambodia has been constantly and actively engaging with the ILO supervisory mechanism. In addition to the information voluntarily submitted to the Committee last month, my delegation has the honour to further provide the Committee with updates on the application of the Convention in Cambodia.

I would like to recall that, following the Committee’s adoption of the recommendations of the direct contacts mission and with the ILO’s technical support, Cambodia has endorsed a road map on the implementation of the ILO recommendations concerning freedom of association, with extensive consultations with all relevant stakeholders. This road map defines time-bound actions and guidelines to implement the ILO recommendations, and to strengthen the application of the Convention.

With continued support and cooperation from the ILO, a number of achievements have been made, particularly with regard to trade union registration, protection for trade union leaders and capacity-building on the exercise of freedom of association in order to promote the exercise of freedom of association in Cambodia. Cambodia has continually reported its progress on the implementation of the road map to the ILO and relevant stakeholders.

My delegation took note of the observations made by the Committee of Experts as to the amendment to the Law on Trade Unions (LTU). We would like to reiterate that the LTU is crucial legislation to uphold the rights of professional organizations, as set forth in the Constitution of the Kingdom of Cambodia, the Labour Law, and Conventions Nos 87 and 98. Following the adoption in 2016, and in response to the actual context of the country, this Law was amended and came into effect in early 2020.

My delegation would like to take this opportunity to highlight that the purposes of the amendment to the LTU are to: further promote the freedom of association of domestic workers; facilitate the procedures and formalities of trade union registration and maintain registration; facilitate the requirements to acquire the multi-representative status; and to promote the rights and duties of minority worker unions.

In this regard, I wish to draw the Committee’s attention to the fact that the number of registered trade unions has increased considerably following the adoption of the LTU in 2016 and its amendment in 2020. As of March 2021, there are 5,546 registered trade unions, of which 290 trade unions were registered after the amendment to the LTU, despite the COVID-19 pandemic. This number is an eloquent testimony to the conducive environment for the exercise of freedom of association in Cambodia.

As to the rights of workers and employers to establish and to join organizations, in response to the observation made by the Committee of Experts, the amended article 3 of the LTU includes domestic workers, personnel working in air and maritime transportation, and those who work in informal sectors. In this connection, domestic workers, workers in the informal economy and teachers who are not civil servants are free to form a worker union of their own choice to promote or protect their interests as long as the conditions stipulated under the LTU are satisfied.

The Government, through the Ministry of Education, Youth and Sport, firmly upholds the rights, freedom, dignity and profession of all teachers and education personnel who freely practise their rights and freedom within the existing framework of laws and regulations. The teachers and education personnel have the rights to form associations, unions and/or educational organizations to serve and protect their legal rights and interests. In no circumstances whatsoever can teachers’ associations, unions and/or educational organizations be the extension of any political party and must follow the laws and legal regulations currently in force. They have the right to join any political activity under the relevant laws and legal regulations.

Regarding the application of Article 2 of the Convention, the Law on Associations and Non-Governmental Organizations (LANGO) is being reviewed following consultations with civil society in 2020. The amendment to this law is expected to take place in the near future.

In response to the observation of the Committee of Experts regarding the Khmer literacy requirement, my delegation would like to shed factual light that, in the Cambodian context, particularly in promoting harmonious industrial relations, this requirement is requisite and is not incompatible with the Convention. The agreement on this requirement was reached following discussion in the tripartite consultation workshops and, in practice, there have been no concerns raised with respect to this matter.

My delegation also took note of the observation of the Committee of Experts regarding the dissolution of trade unions. I would like to reassure the Committee that the Government has put in its utmost effort to ensure that the interests of trade unions and their members are well protected. The amendment to the provision of the LTU as to this matter was made in accordance with the comment from the Committee of Experts and the suggestion from social partners during the tripartite consultations. Under the amended legal provision, a local worker union will not be immediately dissolved upon the closure of the enterprise, unless the employers’ obligation towards their workers has been fulfilled, in accordance with the court decision. It is aimed to determine the requirement according to which a worker union no longer maintains or possesses its legal personality.

My delegation would like to clarify that, under the amended article 29 of the LTU, the party concerned or 50 per cent of the union’s members may file a request with the court for the dissolution of the union, although it is not a ground for dissolution. Under the same legal provision, the court may decide to dissolve a professional organization if it is found that the ground for dissolution is satisfied and the organization fails to rectify its shortcomings within the time frame set by judicial discretion. This process ensures that the entity concerned may exercise its right to defend itself before the court and has sufficient time to prove to the judicial authority that its legal personality could be maintained.

While the amendment to the LTU has been recently adopted, we would like to take this opportunity to request technical assistance from the ILO and call for collaboration from the relevant stakeholders to conduct awareness-raising and capacity-building to strengthen its implementation. We would also like to inform the Committee that an annual review of the implementation of the LTU is scheduled through the Labour Forum which is a tripartite mechanism to review the challenges of the implementation of the laws and regulations in force.

Taking note of the Committee of Experts’ observation on independent adjudication mechanisms, we would like to reiterate our firm commitment to supporting the operation of the Arbitration Council, gathering both technical and financial support from stakeholders to ensure the sustainability of this institution. Based on the current context of the draft amendment to the Labour Law, the Arbitration Council will be able to hear individual labour disputes in accordance with specific criteria to be defined in the Prakas (regulations) of the MLVT. The MLVT is working closely with the Arbitration Council Foundation and the Arbitration Council to prepare the necessary implementing regulations following the adoption of the amendment to the Labour Law in this regard.

My delegation would like to reiterate that, in Cambodia, there has never been a case in which an individual was arrested or convicted for their legitimate union activities. As a democratic country adhering to the rule of law, all Cambodian citizens are equally treated before the law, regardless of their political affiliation, profession, or social status, as guaranteed by the Constitution.

As stated earlier, trade unionists are also citizens, so they shall also be responsible before the law for their wrongdoings. Individuals are prosecuted or convicted by judicial authority not because of who they are, but because of offences they have been committing. In any circumstances, legitimate union rights should not be construed as a shield for lawbreaking. In addition, the Convention does not provide any privilege to impunity to trade unionists. Having said that, this does not mean that Cambodia overlooks legitimate union rights. We are upholding and protecting union rights without denigrating the rule of law and undermining law-abiding citizens. Once again, we would like to request close and genuine collaboration with the relevant stakeholders regarding their observation and allegation, in particular with regard to trade union discrimination. The MLVT remains available in order to take immediate action concerning the above-mentioned issues. We do need to gather factual information as well as evidence before addressing those issues and we would like to thank our social partners who keep engaging with us in this regard.

Contrary to the allegation raised, as mentioned above, Cambodia has made considerable progress on the application of the Convention, notably in rendering an environment conducive to the exercise of freedom of association that is free from violence and intimidation.

We would like to request your kind attention when considering the progress made by our Government and the challenges we face, particularly during this unprecedented time. We would like to take this opportunity to request all stakeholders’ collaboration in implementing the road map on ILO recommendations concerning freedom of association and Cambodia avails itself of the ILO’s continued technical support. We will continue working with the relevant stakeholders and provide the parties concerned with legal assistance to conclude their pending cases.

To conclude, I would like to reassure the Committee that Cambodia remains committed to promoting, protecting, and adhering to all duties and obligations stipulated in the relevant instruments to which it is party. We will be pleased to provide further information upon request.

Worker members – With factories closed due to cancelled or reduced orders, hotels vacant, construction halted, and the informal economy swelling as a result of the COVID‑19 pandemic, many workers in Cambodia have struggled to survive over the last year. All of this came on top of an already difficult environment for workers’ rights, so bad in fact that the European Union (EU) partially suspended its Everything But Arms trade preference programme, over labour and other human rights violations. I will refer to just a few issues in my opening remarks.

Regarding emergency laws, over the past year, the Government has passed a number of emergency laws and decrees that restrict the exercise of freedom of association. On 10 April 2020, the Law on the Management of the Nation in Emergencies was enacted, granting the Government broad powers to ban meetings and gatherings; to survey telecommunications; to mobilize the military; to ban or restrict news media that may harm “national security” and other measures that are “suitable and necessary”. Infractions are punishable by heavy imprisonment terms and fines. In March 2021, another law, the Law on Measures to Prevent the Spread of Covid-19 and other Serious, Dangerous and Contagious Diseases, also includes bans on gatherings and unspecified “administrative and other measures that are necessary to respond to and prevent the spread of Covid-19”. Such vague provisions allow for abuses by the authorities by arbitrarily targeting people and organizations protesting about government policies.

A deeply problematic draft public order law would require approval from the authorities for the use of public spaces and would permit the authorities to stop an event if authorization had not been sought.

Regarding criminalization of labour protests; in July 2020, union leader Rong Chhun was arrested and charged with “incitement to commit a felony or cause social unrest”. Dozens of police surrounded his house at night and arrested him without a warrant. There is no evidence that Chhun committed any offence. Indeed, the arrest followed his advocacy for villagers in a land dispute along the Cambodia–Vietnam border. Also arrested last year was Ms Soy Sros, President of a local union affiliated to the Collective Union of Movement of Workers (CUMW). She was detained on 3 April 2020 by police in Kompong Speu Province pursuant to a criminal complaint filed against her by the employer for having posted messages on Facebook related to a labour dispute concerning the unjust dismissal of a number of union members.

Regarding obstacles to registration; despite some amendments to the application forms, the registration of trade unions remains difficult, with applications denied for arbitrary reasons or for extremely minor technical errors. In one case, a union submitted its application to the MLVT on 25 December 2020, with all ten types of documents (in line with Prakas No. 249 and notification No. 039). In the first week of February 2021, local union leaders were called by the MLVT for the first time to correct spelling mistakes on the cover letter and in the profile of union leaders. On 15 February 2021, the local union leaders resubmitted the corrected documents to the Ministry. Over two months later, on 7 May 2021, the local union leaders were called a second time to correct the size of the photos of the union leaders from (3x4) to (4x6) and resubmitted once again. As of 18 May 2021, the union is still not registered, after having expended considerable time and resources to submit the application. This case is not an aberration, as others have reported similar efforts by the authorities to deny union registration over issues that have nothing to do with ascertaining whether workers have expressed their intent to be represented by a union.

Regarding legislative matters; for many years, the Committee of Experts and this Committee have raised concerns with regard to several aspects of the LTU. In December 2019, several amendments to the Law were enacted. However, they still fail to bring the LTU into compliance with the Convention. Moreover, trade unions report that the Government did not meaningfully engage with them and refused to consider the union’s proposed amendments, which would have ensured compliance with the Convention.

While not exhaustive, I note some of our concerns: domestic workers, workers in the informal economy and others not organized on an enterprise model still cannot in practice form and join unions, and teachers who are civil servants are not covered by the LTU but rather the regressive LANGO. The law still grants excessive financial control by the authorities, including unlimited audits, which infringes the right of workers to administer their organizations. The eligibility criteria for electing trade union leaders, including those related to residency and literacy, deny the right to elect trade union representatives in full freedom.

The law still provides for broad grounds to request the dissolution of a union, rather than leaving that matter to the union’s statutes. The law also limits the rights of minority unions to bargain on behalf of their own members, which is not conducive to the promotion of collective bargaining and affects the right to join unions of own choosing.

Regarding unions denied the ability to represent members, one of the most concerning developments is the refusal of the MLVT to allow upper-level trade unions to represent their members in collective disputes.

In one case, in April 2020, a collective labour dispute conciliation was being carried out at the Siem Reap Labour Department and included leaders of the local union with most representative status, as well as the president of the federation and the vice-president of the confederation. During the conciliation, the Chief of the Disputes Office declared that leaders of federations and confederations were not allowed to speak during the meeting and threatened to dismiss them if they did not comply. They were told, erroneously, that they could not participate because unions with most representative status could not have anyone represent them. It is a serious violation of the right to freedom of association to deny a local union the support of upper-level unions to which it is affiliated. Again, this is no aberration, as other unions have reported that they have been prohibited from representing the interests of their members in collective disputes, which is guaranteed in the law for most representative status unions, so long as in the latter case the dispute does not arise out of the collective agreement.

In practice, finally, we note that across the country, unionized leaders and members have been targeted for dismissal during retrenchments provoked by the COVID-19 pandemic. The same story is playing out too in garment factories across the country.

I will note, before closing, that we are deeply and especially concerned with regard to violence and impunity, including state-sponsored violence. Indeed, there has still been no resolution of the murders of Chea Vichea, Ros Sovannareth and Hy Vuthy after so many years. There still remain unsolved cases concerning the arbitrary arrest and detention of trade unionists seven years after the 2014 protests.

I will come back to these matters more fully in my closing comments and the Committee will hear more from the Worker representatives from Cambodia and other countries on these and other issues before I conclude.

Employer members – I would like to begin by thanking the Government representative for her detailed submissions today and welcome her comments regarding the Government’s commitment to the application of the Convention in Cambodia.

I would like to begin by addressing a number of legislative issues that are present in the case and included in the Committee of Experts’ observations. However, I note at the outset that the Worker representative mentioned several pieces of legislation that, in our view, are not part of the scope of this case. The Employers will only refer to the issues in legislation properly within the scope of the discussion of this case.

First, the Committee of Experts took note of the information provided by the Government on the process to prepare amendments to the LTU, in consultation with the social partners and with technical support from the ILO. We would therefore note, at the outset, that we view this to be a measure of progress in this case and welcome the developments and engagement of the Government with the ILO and the social partners in this regard.

The Government informed the Conference Committee in its submission that the Law on Amendments to the LTU was promulgated on 3 January 2020 and attached a copy with its submission. For this information we are appreciative.

The Committee of Experts, in its previous comments, urged the Government to take appropriate measures in consultation with the social partners to ensure that civil servants, including teachers, have freedom of association rights and that the legislation is amended accordingly. The Committee of Experts, in its current observations, has urged the Government to take appropriate measures and to provide information regarding the freedom of association rights of both civil servants, as well as domestic workers, and workers in the informal economy.

The Employer members request that the Government continue to identify appropriate legal measures in consultation with the social partners to ensure that civil servants not covered by the LTU have the freedom of association rights guaranteed under the Convention. The Employer members encourage the Government to discuss with the social partners the possibility of allowing the formation of unions by sector or profession, and discuss the removal of any legal difficulties for domestic workers to create or join trade unions.

In its previous comments, the Committee of Experts requested the Government 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 and the Committee of Experts has requested the Government to provide information on any developments in this respect.

The Employer members note that the literacy requirements in sections 20, 21 and 38 of the LTU may interfere with the autonomy of employers’ and workers’ organizations as guaranteed in Article 3 of the Convention. While these organizations may or may not include such a requirement in their own statutes, it must not be imposed by law. The Employer members therefore call upon the Government to remove the literacy requirements from this legislation.

In its earlier request to the Government, the Committee of Experts recalled amendments to section 28 of the LTU, which provides that a union is automatically dissolved in the event of a complete closure of an enterprise or establishment. The Committee of Experts requested that the Government take the necessary measures to amend section 28 of the LTU by removing paragraph 2.

The Employer members note that the dissolution of employers’ and workers’ organizations should either be regulated in the statute of the organization or be decided by a court. An automatic dissolution by law is not in compliance with Article 4 of the Convention. The Employers therefore call upon the Government to repeal paragraph 2 of section 28 of the LTU.

The Employer members also note that, in line with Article 3 of the Convention, it is for workers’ or employers’ associations to determine in their statutes the rules and procedures for their dissolution, when initiated by their members. This should not be regulated by law and therefore the Employer members call upon the Government to repeal section 29 of the LTU.

The Committee of Experts observed with satisfaction that the 2019 amendments removed paragraph (c) of section 29 of the LTU. This provision provided that a union or employers’ association shall be dissolved by the labour court in cases where leaders, managers or those responsible for the administration were found guilty of committing a serious act of misconduct or offence on behalf of either the union or employer association. The Employer members note with satisfaction the effect of this legal change and appreciate the Government’s engagement on this issue.

In looking at the issue of independent adjudicative mechanisms, the Committee of Experts recalled in earlier comments the importance of an effective judicial system as a safeguard against impunity, as well as an effective means to protect freedom of association rights.

The Committee of Experts requests that the Government continue to provide information in respect of the strengthening of the Arbitration Council, including any measures undertaken to ensure that the Arbitration Council awards are duly enforced. The Employer members note with satisfaction the Government’s ongoing efforts to make the Arbitration Council an effective and sustainable institution in handling labour disputes. The Employer members also encourage the Government to continue its endeavours in this regard and provide information on further measures taken.

Overall, the Employer members therefore view the progress in amendments to legislation and the responsiveness of the Government to the issues raised by the Committee of Experts, the Conference Committee, and with the provision of technical support from the Office, to be very positive. We welcome these steps and we wish to continue to encourage the Government to work towards full compliance in both law and practice.

We will also very briefly address, in respect of the application of the Convention in law and in practice, allegations of arrests of trade unionists and violence. At this moment, we wish to simply say that we recall that freedom of association can only be exercised in a climate free from violence and intimidation and we encourage the Government to ensure that it is taking all measures to create that climate, foster that climate, and promote a climate free from intimidation.

Worker member, Cambodia – I am the President of the Cambodia Labour Confederation (CLC). As the Workers’ delegate, I would like to stress the labour situations existing in Cambodia. I have spoken in the Committee in previous examinations of this case, testified to the ILO direct contacts mission to Cambodia, and taken part in government consultations to implement the recommendations. I regret to report that challenges still remain for trade unions and workers.

In 2004, Chea Vichea, Ros Sovannareth and Hy Vuthy were murdered. Up to now, the murderers have not been found. The trade union victims in the general strike to demand higher wages in 2013, including the five workers killed, 23 workers jailed and others criminalized, are yet to receive justice. We urge the Government to continue investigations to return real justice for the victims.

Trade unionists in Cambodia are faced with criminal charges and civil litigations when exercising their rights. In late 2018, the CLC forwarded 58 cases to the MLVT among a total of 121 cases. So far, only 16 criminal cases have been dropped. Forty-one civil litigations are not yet settled.

We urge the Government to continue the coordination to drop all pending cases and liquidate the 41 collective disputes. Last year, two female union leaders were faced with fabricated criminal charges by a local pharmaceutical and a garment company after they had formed a trade union. One of them has been trialled in absentia and sentenced to two-and-a-half-years imprisonment and a fine of $100,000 to the company. The court issued an arrest warrant against her. Mr Rong Chhun, President of CCU, was arrested on 31 July 2020. He spoke out about the farmers’ land loss. He remains in prison without a trial date. We urge the Government to drop all the cases and release all the union leaders and workers.

We regret that the action points in the Government’s road map have not addressed the substance of the recommendations of the direct contacts mission nor changed legal implementation and practices.

The amended LTU still excludes public servants. The self-employed and domestic workers still cannot form a trade union given the requirement to have at least ten workers in the same workplace. These worker associations were not invited to attend the consultation to amend the LANGO. Trade union leaders are constantly faced with unfair dismissals when we extend support to our members and non-members in mass dismissals, cases of discrimination and factory closures. Even the federations and their local unions, which have been certified with most representative status, are barred by the labour dispute officers from representing members in workplace conciliation meetings.

It has become a systematic pattern since the pandemic that collective labour disputes concerning industrial relations, business closures and mass lay-offs have been misclassified as individual labour disputes by the labour dispute officers, in order to avoid the legal remedies afforded to shop stewards and union members. These new obstructions undermine the meaningful role of the trade unions in pursuing our rights protected by the Convention.

The ability of trade unions to effectively serve workers and our members is greatly inhibited by the restrictions under the LTU.

Employer member, Cambodia – I am the Vice-President of the Employers’ Association in Cambodia and I run an organization that represents all sectors relating to labour and social affairs. We were established in 2005 and have long since been working with the ILO and its bodies in addressing labour and social affairs in Cambodia.

It is with regret that we find ourselves before the Committee. It is not that we have not demonstrated progress as a country. On the contrary, I sense that the progress demonstrated in the report is significant and the Government has been very responsive to the matters on hand. I hope that the house will recognize the improvements Cambodia has made; not only can these be seen in the comments in the report, but also in the reporting that the Government has provided. We encourage the Government to continue to strengthen the reporting quality and ensure that reports are provided on time to avoid the Committee escalating matters, when good work has been done within the country to address the matters that have been raised.

I will address quickly a few matters to ensure understanding of the local market. First, I would like to comment that the Worker members’ opening remarks were in the majority not related to the case in hand. We cannot accept that this Committee and this house allow other matters to be discussed, except for those matters that are outlined in the case file. We will not accept that an outcome of our work goes beyond the scope of the case described. I would like to point out again that the labour law in Cambodia covers employment relationships in all our employment sectors, except the public sector. The public sector is governed by the Civil Codes of the Government, as well as other government administrative bodies and should not be confused in the discussions here with the LTU, as well as the general labour law in Cambodia.

The principles of freedom of association are well enshrined in the Constitution and in the laws. The methodologies we use to develop our laws are really inclusive of all the social partners and put forward our different views and opinions. Sufficient time is provided as well. Laws are crafted considering the local context and the state of development in the country.

Testimony to the freedom of association in Cambodia is clear from the number of unions that have been registered since the development of the LTU. As our Government representative mentioned, 5,546 unions have been registered. Of those, more than 3,000 unions have been registered among 650 garment, footwear and handbag factories. That is around 4.6 unions per enterprise.

The multiplicity of unions within an enterprise has not produced any great outcomes for the Cambodian garment sector, which suffered debilitating strikes prior to the development and implementation of the LTU. Rather, it has achieved weak collective bargaining agreements, multiple strikes, a disillusioned membership base and much infighting among unions.

I think it is important to point out that freedom of association does not imply that one does not have the responsibility to abide by the law and follow the law. It is essential that our laws address the challenges in the country and help the country move to more harmonious and constructive industrial relations, and all parties need to respect the law and be held accountable before the law if we break the law.

Laws that are tailored to consider the local context of our development as a country are very important. I stress this because the requirement to have an education level for unions, which now has been removed from the law, was critical to ensure that we raise the quality of the union movement in Cambodia. That said, the education requirement was removed but, in the event that a foreigner wishes to become a trade unionist, it is totally within the Government’s authority to require certain levels of education for foreign workers within the country to maintain and to ensure the quality of employment for the Cambodian people.

In Cambodia, we are developing laws from the ground up. We never had a trade union law; we developed a trade union law. We never had a social security law; we developed a social security law. To do this, you need a counterpart that has the ability to read and write and comprehend what we are discussing at the table. A simple baseline of requiring reading and writing seems to be a reasonable requirement in building up strong social partners in the country who are able to contribute effectively to the development of the social and labour laws in the country.

These are the few points that I would like to raise. I would like to stress again – and hope that the Committee today recognizes – the improvements that the country has made and that we continue to encourage the Government to strengthen its reporting quality and ensure that reports are provided in a timely manner so that Cambodia can continue to be an active player.

Government member, Portugal – I have the honour to speak on behalf of the European Union (EU) and its Member States. The Candidate Countries, the Republic of North Macedonia, Montenegro and Albania, the EFTA country Norway, member of the European Economic Area, as well as the Republic of Moldova, align themselves with this statement.

The EU and its Member States are committed to the promotion, protection, respect and fulfilment of human rights, including labour rights and the right to organize and freedom of association.

We actively promote the universal ratification and implementation of fundamental international labour standards and support the ILO in its indispensable role to develop, promote and supervise the application of international labour standards and of fundamental Conventions in particular.

The EU and its Member States have been committed development partners of Cambodia, among others, through the Everything But Arms arrangement under the EU’s Generalized Schemes of Preferences regime, granting duty-free and quota-free access to the EU markets, resulting in sustained growth and job creation in the past decades. However, due to serious and systematic violations of human rights, especially the right to political participation and fundamental freedoms, as of August 2020, this preferential treatment has been partially suspended.

Concerning labour rights and, in particular, freedom of association and protection of the right to organize, and in reference to legislative reforms, we regret that the Committee finds a structural lack of progress. We take note of the amendments to the LTU, in particular the extension of its coverage to domestic workers, teachers who are not civil servants and workers in the informal economy. Despite these changes, however, the revision of the LTU still fails to ensure conformity with the Convention, since the provisions of the law (article 10) do not allow the creation of unions by sector or profession, thus preventing an effective enjoyment of freedom of association and the right to organize by domestic workers and workers in the informal economy.

Similarly, the LANGO still contravenes the rights of freedom of association and the protection of the right to organize for civil servants, including teachers, under the Convention. In particular, serious deficiencies remain in relation to recognizing civil servants’ associations’ right to draw up their own constitutions and rules, to elect representatives, to organize activities and formulate programmes without the interference of the public authorities.

We urge the Government to take the appropriate measures, in consultation with the social partners, and amend the legislation accordingly. It is also important that the full and effective enjoyment of these rights by domestic workers and workers in the informal economy is secured and protected. We also request the Government to amend other relevant sections of the LTU to respond to the Committee’s observations regarding the dissolution of representative organizations.

Furthermore, we underline the need for an independent judicial system to guarantee the effective implementation of the social partners’ right to organize and protect their freedom of association. With the Committee, we welcome the Government’s commitment to strengthen the Arbitration Council and underline its important role in the handling of collective disputes, as well as possibly individual disputes in the near future.

The EU remains deeply concerned about reports of continuous harassment, attacks and arrests of trade union leaders and urges the Government to take all necessary measures and actions to ensure the exercise of trade union rights and activities and that no criminal charges are brought against trade unionists for exercising their rights under the Convention. In this regard, we encourage the Government to continue to provide information on all pending criminal cases against trade unionists.

The EU remains deeply worried about the continued lack of concrete steps or results in the murder investigations of the three trade union leaders in 2004 and 2007, and calls on the Cambodian authorities to swiftly conclude the investigations and to bring the perpetrators to justice.

We also encourage Cambodia to remain vigilant on dismissals due to the COVID-19 crisis, in particular those that seem to be selectively targeting trade union leaders.

The EU and its Member States will continue to closely monitor the situation in Cambodia.

Government member, Thailand – I have the honour to deliver this statement on behalf of the Association of Southeast Asian Nations (ASEAN). We welcome Cambodia’s progress in implementing the Convention, notably the recent amendments to the LTU and the growing number of registered trade unions.

Cambodia has demonstrated its commitment and willingness to work towards protecting and promoting freedom of association in accordance with international labour standards. In particular, the Cambodian authorities, together with the ILO and the Office of the United Nations High Commissioner for Human Rights (OHCHR), organized training for police officers on the “Rights to strike and peaceful demonstration”. This is commendable.

We recognize the efforts made by the Cambodian Government to actively engage with the ILO supervisory mechanism and its social partners, including its timely submissions of regular progress reports of the road map on the implementation of the ILO recommendations concerning freedom of association. We hope that Cambodia will continue to implement the ILO recommendations.

We commend Cambodia’s active arrangements as regards the social dialogue mechanism in advancing harmonious industrial relations. In a constructive spirit, we encourage Cambodia and its social partners to continue employing the social dialogue process in the promotion of the exercise of freedom of association.

In light of above-mentioned positive progresses and achievements as to the application of the Convention, ASEAN calls on the ILO and all partners to continue assisting and engaging constructively with Cambodia in this regard.

Worker member, Australia – The Swiss Workers’ delegation and Education International align themselves with this statement. The COVID-19 pandemic has been used by the Government to continue to deny free association and assembly to Cambodian workers. The last year has seen tightened monitoring of trade union activities, harassment of union leaders, and interference with trade union protests.

On 1 July 2020, Yang Sophorn, President of the Cambodian Alliance of Trade Unions (CATU), received a letter threatening to dissolve the union if she continued with her mediation of a collective labour dispute relating to the closure of a garment factory. Due to COVID-19 restrictions, the CATU could not hold a congress before the expiry of its registration.

In July 2020, police blocked a demonstration of workers led by Rong Chhun, President of the Cambodian Confederation of Trade Unions, over the garment factory closure. On 31 July 2020, authorities arrested Rong Chhun. He was subsequently charged with “incitement to commit a felony” and he continues to be held in detention.

On 6 August 2020, the Labour Department threatened the Presidents of the Cambodia Tourism Workers’ Union Federation and Le Meridien Angkor Trade Union that both unions would be dissolved for allegedly organizing illegal strikes and blocking a public road outside a luxury hotel.

On 7 August, at least seven protesters were arrested at a solidarity protest demanding, in defiance of government warning, Rong Chhun’s release.

On 10 August, the President of the Cambodian Independent Teachers’ Association (CITA), Ms Ouk Chayavy, was attacked and pushed off her motorbike after visiting Rong Chhun in prison. The CITA President was in the process of submitting petitions to the United Nations and the United States of America, demanding Rong Chhun’s release.

In September 2020, police visited seven labour organizations’ offices to inspect their registration and staff records. The police searched the office of the CITA, claiming they were “conducting a census” and demanding information about the group’s registration and activities.

On 30 September 2020, police broke into a CLC meeting, inspected the identification papers of all the participants, and of the programme and all the papers. Venue owners now decline to rent properties to trade unions or NGOs for their meetings because of the police harassment.

On 11 May 2021, Kang Nakorn, of the Independent Democracy of Informal Economy Association (IDEA), was detained by police as he was gathering names of members facing economic difficulties during the COVID-19 outbreak. On 25 May, Kang Nakorn was released but only on the basis that the IDEA would not mention the case publicly.

We implore the Government of Cambodia to ensure freedom of association can be exercised in a climate free of threats, intimidation, and violence.

Government member, United States of America – The Government of Cambodia submitted information to this Committee in response to the recent observations of the Committee of Experts. Recent developments since we last discussed this case in 2017 include: amendments to the 2016 LTU in January 2020; police training in October 2019 for situations of public and industrial protest; and acquittal of six trade unionists in May 2019 for criminal charges related to January 2014 demonstrations.

Despite these efforts, significant challenges remain. The Committee of Experts notes ongoing reports of violence, arrests, as well as lack of progress in investigating the deaths of trade unionists. We urge the Government to continue building on recent efforts, prioritizing work in the following areas: first, ensure a climate free from intimidation and violence by increasing efforts to investigate, prosecute, and hold perpetrators accountable; second, ensure no criminal charges or sanctions are imposed for the peaceful exercise of trade union activities, including participation in public and industrial protests. We request more information about the alleged offences and laws used to arrest five trade unionists in August 2020; third, reform Prakas No. 249 on trade union registration, taking into account recent reports that some unions continue to experience challenges in registration; fourth, amend the process for determining case eligibility for the Arbitration Council by providing the Arbitration Council with the authority to determine what disputes are collective; and finally, despite recent amendments to the 2016 LTU, further amendments are necessary to address gaps and issues of non-compliance, particularly with respect to article 55 on most representative status unions; article 28 on government authority to dissolve closed trade unions; and Chapter 15 on excessively high penalties for non-compliance with the LTU.

We urge the Government to take necessary measures to address these long-standing issues, in compliance with the Convention. The United States remains committed to engaging with the Government to advance worker rights in Cambodia.

Worker member, Japan – My intervention is aligned with the Singapore National Trades Union Congress (SNTUC) and IndustriALL. The garment sector in Cambodia is the most vulnerable sector, having a majority of workers in precarious employment. Garment unions, however, are systematically obstructed from representing the interests of their members in relation to wages and compensation claims and their leaders are often sacked after they have filed to register a trade union.

The Government has adopted several subdecrees and amended the LTU to clarify the role of minority unions in representing the members in collective labour disputes. However, the Government has still failed to implement it. Rather, to represent union members, national federations are facing difficulties, as follows.

In 2018, representatives of the Coalition of Cambodian Apparel Workers’ Democratic Union (CCAWDU), a national garment union federation, were prohibited by the labour dispute officers from speaking and representing their members in conciliation meetings concerning cases of discriminatory dismissals of union leaders and improvement of working conditions. The CCAWDU representatives received a warning letter from the MLVT afterwards.

There have also been abundant cases of union requests to the Arbitration Council being refused. Abundant cases show that the MLVT has failed to invoke the procedures on anti-union discrimination under the Labour Law and has accepted redundancy lay-offs and terminations of elected garment union leaders as non-renewable or short-term employment contracts. More and more industrial disputes, such as mass termination of employment cases, have been forwarded to the Committee for the Settlement of Strikes and Demonstrations instead of to the Arbitration Council. A conciliation process led by that committee is public-security driven to prevent labour strikes and public protests. In all the cases forwarded to the committee, the garment unions are pushed back and workers receive much lower compensation and benefits than guaranteed in the law.

I would like to reiterate that in order for unions to exercise the right to freedom of association, which is the most essential right, fair representation of union workers in dispute settlement should be guaranteed. We urge the Government to expedite its procedure to improve the judicial system, including by strengthening the function of the Arbitration Council.

Government member, Switzerland – Switzerland regrets that we must once again discuss Cambodia’s compliance with the Convention, which is a fundamental convention. Since 1999, Cambodia has regularly appeared on the list of cases to be examined by our Committee. Independent trade unionists and workers in various sectors are still discriminated against, harassed, threatened, arrested or imprisoned when trying to exercise their rights. In this regard, since ratification, the Committee of Experts has made more than 30 recommendations. Eleven cases of violations have been reported to the Committee on Freedom of Association, of which one is still active and two are subject to follow-up.

Today, Switzerland expresses its concern about this persistent pressure on trade union activities and regrets that the police still use violent and intimidating methods. For this reason, Switzerland firstly encourages ILO technical assistance with training of security bodies and, secondly, cooperation with the OHCHR, to improve knowledge of the fundamental principles of human rights. It is through social dialogue and negotiation that peace is established.

The need to accelerate investigation procedures, to provide information on ongoing criminal proceedings and to monitor the implementation of the Convention in practice remains a priority.

Finally, Switzerland expresses the hope that the law on the Labour Court and the LTU will be brought into line with international labour standards.

Observer, International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) – Five years have passed since the promulgation of the Cambodian LTU in 2016. Collective bargaining remains a rare exception in regulating sound industrial relations in Cambodia. The enforcement of the Law and certification of most representative status for collective bargaining have not been accompanied by effective sanctions against employers’ refusals to recognize trade unions and bargains, nor by the accountability of the labour administrative bodies.

These challenges are being reflected in the dispute at an integrated hotel and casino in Phnom Penh. In 2018, the Labour Rights Supported Union, representing 50 per cent of workers in this workplace, filed for most representative status for collective bargaining. The union was stuck in a prolonged administrative process with the competent authority. Up to now, no certificate has been granted.

Since 2019, the union has been engaging with the management to demand better wages and working conditions. Trade union leaders and their members have been subjected to threats, intimidation, harassment and interference of all forms from the employer following the union’s launch of a living wage campaign at the workplace. The trade union president was interrogated by police officers in meetings held forcibly with the management. She was later suspended from work. The trade union leader was threatened with full-scale surveillance of their conduct, activities and conversations.

In September, the authority proceeded to forward the dispute to the Arbitration Council, requesting the suspension of the union leader. Despite a petition by 3,800 workers to the authority for labour arbitration for their leader’s reinstatement and requesting collective bargaining, the Ministry maintained the suspension as an individual case, not affording the legal remedies pertaining to unfair labour practices.

Although the Cambodian Labour Law and the LTU contain clear provisions on the right to collective bargaining, collective labour disputes and remedies in cases of violation, the labour administrative authorities can exert control over the process with administrative obstructions and delays. Without a legal status to bargain, the union does not have the institutional and legal status to negotiate workplace safety measures in the pandemic or the redundancy plan involving 1,329 workers.

I end my speech by urging the Government to ensure the enforcement of the LTU with all industrial relations parties for the effective application of the Convention in Cambodia.

Worker member, International Transport Workers’ Federation (ITF) – I speak on behalf of the ITF and the French Democratic Confederation of Labour (CFDT). In this Committee’s discussion of Cambodia’s compliance with the Convention in 2017, we raised serious concerns about Cambodia’s largest airport operator, a French multinational, which operates three major airports in the country – in Siem Reap, Phnom Penh and Sihanoukville. In 2017, we were concerned about unilateral amendments to the collective agreement and anti-union discrimination, among other things.

Sadly, today we have to report that the French airport operator has been significantly undermining the representativeness of the ITF-affiliated Cambodian Transport Workers’ Federation (CTWF), avoiding bargaining in good faith, delaying a fair collective agreement, and engaging in further anti-union discrimination. In January 2019, the CTWF gained most representative status in Siem Reap and sought to commence bargaining. This was rejected by the company on the grounds of wanting to combine bargaining with Phnom Penh. In March 2019, when the CTWF achieved most representative status in Phnom Penh, the company then delayed the bargaining again until all three airports could bargain together.

More recently, during the pandemic, the company has dismissed over 100 workers and initiated restructuring without engaging the union. The dismissals disproportionately target trade union members and are in clear violation of the principles of freedom of association. The airport authority also continues to offer redundancy packages that are below the legal minimum.

While the company, as a result of repeated Arbitration Council decisions, finally commenced bargaining with the union, this has now been delayed again with very little progress made. If redundancy dismissals continue to target union members, this would threaten CTWF’s most representative status and most representative status certificate.

A corporate restructuring should not threaten unionized workers and their organizations. Dismissals disproportionately targeting union members not only threaten the CTWF’s ability to represent its members, it also creates a climate of fear that is not conducive to freedom of association. The delays in concluding a collective agreement also demonstrate failures by the Government to guarantee the right to meaningful collective bargaining.

Further, the French multinational has also failed in its responsibility under the Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy and its obligations under the French Duty of Vigilance of Law to conduct human rights due diligence in its supply chains and to address adverse impacts. Freedom of association and collective bargaining are fundamental rights covered under all business and human rights instruments and the French Duty of Vigilance Law. The airport operator must reinstate dismissed workers and recommence collective bargaining, with a view to concluding an agreement without delay. Freedom of association and collective bargaining cannot be a blind spot in human rights due diligence.

Worker member, Burkina Faso – Cambodia ratified the Convention in 1999. The Committee has been addressing failures in its implementation since 2016. In 2019, Cambodia was again challenged over allegations of violent repression of strikes by specially hired criminals and the detention of union leaders who organized strike action in the garment industry.

With regard to the murder of trade unionists, the Committee recommended conducting full and independent investigations into the murders of trade union leaders, including Chea Vichea and Ros Sovannareth, and Hy Vuthy in 2007.

Should we be afraid or ashamed to say that, today, the ILO is on very shaky ground? First, even when there has been no effort. I fear that it is this failure to analyse concerns about the risks of global warming, for one, that has led to outbreaks of micro-organisms, such as COVID-19, endangering almost all of humanity.

Government representative – My delegation has listened to all speakers and delegates and takes note of their statements. Constructive comments and views voiced at the Committee will be brought back to Cambodia for due consideration, with a view to ensure a conducive environment for the exercise of freedom of association.

My delegation would like to offer reassurance that Cambodia is committed to honour the Convention. Cambodia has always worked closely with the social partners to promote the exercise of freedom of association and to maintain harmonious industrial relations, with technical support from the ILO. My delegation would like to provide reassurance that Cambodia will continue to work closely with the social partners as to the review of the LTU and any other related legal instrument.

Regarding the right of minority unions to represent their members in labour disputes, we would like to highlight that, under amended article 59 of the LTU, minority unions can represent their members in individual and collective labour disputes, not arising out of the implementation of the collective bargaining agreement. In this regard, minority worker unions, or representatives of workers in case of no worker union, have rights to represent members or workers in collective labour disputes in all dispute settlement procedures, including conciliation at the MLVT and Arbitration Council. In addition, the amendment was made by adding point (i): “representing in good faith its members in collective labour dispute settlement not arising out of an execution of the collective bargaining agreement” in the amended article 59 of the LTU. The amendment aims at further clarifying the misinterpretation that minority unions do not have the right to represent their members in collective labour disputes.

As to the effect of the amendment to the LTU, as of 31 March 2021, the MLVT had forwarded 432 collective labour disputes to the Arbitration Council for settlement, of which: disputes involving organizations with most representative status consist of 30 cases; disputes with minority worker unions as representatives consist of 339 cases; and disputes with workers as representatives consist of 63 cases.

Following the adoption of the Law on Amendments to the LTU in 2020, the MLVT has not received any complaints regarding this matter. The MLVT will continue working on promoting the understanding of the new legislation and strengthening its enforcement.

Although it is not within the scope of the discussion, my delegation would like to address the allegation concerning the State of Emergency Law. My delegation would like to recall that it is not exceptional for Cambodia to have a State of Emergency Law. In fact, the same kind of law has been strictly implemented in many countries, while Cambodia has still not even enforced it since its adoption. It is unfair and a double standard to state that Cambodia does not respect human rights just by having a State of Emergency Law, while the same law has long been established and strictly enforced in other countries, but has never received any complaints. Despite the fact that COVID-19 has thrown the world into unchartered waters, Cambodia has never declared a state of emergency. Despite these challenging and unprecedented times, Cambodia continues its strenuous efforts to protect and promote freedom of association as enshrined in the Convention.

My delegation would like to reiterate that individuals are prosecuted or convicted by judicial authority not because of who they are, but because of the offences they have committed. Under no circumstances should legitimate union rights be construed as a shield for lawbreaking, which denigrates the rule of law and undermines law-abiding citizens. International labour standards do not provide any privilege to impunity to trade unionists.

My delegation would like to offer reassurance that Cambodia will continue working with the relevant stakeholders and provide the parties concerned with legal assistance to conclude their pending cases, especially criminal cases. However, it should also be highlighted that the executive, legislative, and judicial bodies are independent from each other, as guaranteed by the Constitution of the Kingdom of Cambodia, therefore the Government plays no role in the judicial proceedings.

My delegation would like to express its sincere gratitude to the Committee for its observations and to all ASEAN Member States, representatives of workers’ and employers’ organizations and others for their constructive intervention and support extended to Cambodia in this regard.

Employer members – I would like to thank the Government representative for the very detailed submissions that she presented to the Committee and I would also like to thank all of the speakers that have contributed to this discussion. I would, however, also reiterate the necessity for speakers to focus on the discussion of the elements properly before the Committee in this case. In the Employers’ view, it is not useful, nor proper, to have discussions that fall outside of the scope of the proper consideration of this case.

The Employer members have taken note of both the written and oral information provided by the Government representative and, as mentioned, the rich discussion that followed. We note, at the outset, that progress has been achieved in bringing certain aspects of the law into compliance with the Convention, and we appreciate the Government’s efforts and work in this regard.

We do also note that a number of important issues still remain outstanding and must be addressed. Therefore, the Employer members request the Government to continue to identify appropriate legal measures in consultation with the social partners, to ensure that civil servants not covered by the LTU do have freedom of association rights, as required by the Convention.

The Employer members also request the Government to repeal the literacy requirements in sections 20, 21 and 38 of the LTU to allow full participation. The Employer members also request the Government to repeal paragraph 2 of section 28 of the LTU on the automatic dissolution of workers’ organizations in the case of closure of an enterprise or establishment; the Employer members also request the Government to repeal section 29 of the LTU on the dissolution of employers’ and workers’ organizations initiated by members.

We therefore believe that these are some of the areas in which additional work can be done by the Government through the continued cooperation of the Government with the social partners and with technical assistance from the ILO, as required.

We also note that in order to have compliance with the Convention in both law and practice, it is necessary to recall that freedom of association can only be exercised in an environment free from violence and intimidation and we therefore call upon the Government to continue the training of police officers in handling industrial conflict and protest action.

We also encourage the Government to continue to discuss with the social partners the possibility of allowing information of employers’ and workers’ organizations by sector or profession and the Employer members continue to encourage the Government in its endeavours to make the Arbitration Council an effective and sustainable institution in handling labour disputes.

We believe that much has been achieved in respect of Cambodia’s efforts to come into compliance with the Convention, both in law and in practice, and while work remains to be done, we are very much encouraged by these efforts and wish to have that noted in the record. The Employer members also request the Government to continue to provide information on the measures it is taking in respect of all of these efforts.

Worker members – We thank the Government for its comments and we are grateful for all the other contributions to the discussion. The employers of Cambodia have indicated that several elements that we have raised should not be discussed by the Committee. We would like to refer here to the Conference rules which set out the mandate of our Committee and which provide, in article 7.1(a) that our Committee shall examine the measures taken by Members to give effect to the provisions of Conventions to which they are party.

We must state, in particular, that everything we have said today is within the scope of the Convention, the scope of the comments of the Committee of Experts and the rules governing our discussion in the Conference Committee.

As mentioned by many of the speakers today, the Government of Cambodia continues to engage in serious violations of the right to freedom of association in law and in practice. This is despite frequent supervision by the Committee of Experts, the Committee on Freedom of Association and this Committee. Indeed, despite ILO missions, road maps and technical cooperation, we still do not seem to be making progress. Even the legal reforms which the Government promulgated in late 2019 have not made much of a difference for workers and unions, and indeed many obstacles still remain. It is abundantly clear that the LTU was meant to limit the rights of unions to effectively represent their members’ interests. This is worsened by emergency laws with no expiration, and which we can expect to remain on the books long after the pandemic has receded.

But let me come back to the matter of anti-union violence, which I referenced in my opening remarks. Violence, including murder, will never be tolerated. We, in the Workers’ group, will never forget about our fallen friends and will keep raising their cases until there is justice. It has been 17 years since Chea Vichea and Ros Sovannareth were murdered and 14 years since Hy Vuthy was murdered. There is no excuse for these cases to remain unsolved with the material and intellectual authors of these crimes still free. We share the Committee of Experts’ deep concern with the lack of concrete results. We strongly urge the Government to end the impunity and hold all those responsible accountable.

Also intolerable is police violence towards workers and trade unionists. This is not simply an issue of training, although we welcome it so that officers at least know the rights of protestors and act in accordance with international law and best practices. However, in our view, the violence perpetrated by police reflects the low value that the Government places on the labour of workers and the role of trade unions. Until the Government makes clear that trade unions are an important part of society and their efforts to build mature industrial relations is to be valued instead of repressed, then we cannot be surprised when police continue to carry out violence against them. Until this changes, I worry handbooks will simply be ignored.

Finally, I note that after seven years, several trade unionists still have criminal or civil charges pending against them for their participation in demonstrations in early 2014. Let us not lose sight as to why workers were protesting. Workers were protesting for a liveable minimum wage, which still today remains too low. In return, military police opened fire on protesting garment workers on Veng Sreng Street on 3 January, killing and wounding several. There is no reason that any worker should have been charged in the first place in relation to the peaceful exercise of the right to assemble and associate. That some cases remain pending, keeping these workers under the cloud of potential prison or heavy fines, is simply unacceptable.

The Worker members insist that the Government of Cambodia take meaningful action with regard to freedom of association. As such, we recommend the following conclusions:

• refrain from the arbitrary arrest, detention and prosecution of trade unionists for undertaking legitimate trade union activity and drop all charges against those who have been so criminalized;
• provide information with regard to the investigations into the murders, and violence, perpetrated against trade union leaders to the Committee of Experts, and ensure that the perpetrators and instigators of the crimes are brought to justice;
• ensure that acts of anti-union discrimination are swiftly investigated and that, if verified, adequate remedies and dissuasive sanctions are applied;
• with the help of ILO technical assistance, develop guidelines, a code of practice or a handbook on the policing and handling of industrial and protest actions;
• amend the LTU, in consultation with the social partners, to ensure compliance with the Convention;
• ensure that workers are able to register trade unions through a simple, objective and transparent process;
• ensure that teachers, civil servants, domestic workers and workers in the informal economy are able to form and join trade unions in law and in practice consistent with the Convention;
• ensure that all trade unions have the right to represent their members in collective disputes in grievance proceedings at the enterprise level and the ministerial level as well as before the Arbitration Council;
• ensure that binding Arbitration Council decisions are effectively enforced.

We urge the Government to accept a direct contacts mission.

Conclusions of the Committee

The Committee took note of the written and oral statements provided by the Government representative and the discussion that followed.

The Committee expressed deep concern at the continuing acts of violence against workers, the arrests of trade unionists in connection with their activities as well as the lack of effective and timely investigations in relation to these incidents.

In this respect, the Committee urges the Government to:

• investigate all allegations of violent repression of trade union activity and detention of trade union leaders;
• take all necessary measures to expedite the investigations into the murders of trade union leaders Chea Vichea and Ros Sovannareth (in 2004) and Hy Vuthy (in 2007) and ensure that the perpetrators of the crimes are brought to justice;
• undertake all necessary efforts to settle the legal proceedings against trade unionists in connection with the incidents during the January 2014 demonstrations, ensure that no criminal charges or sanctions are imposed in relation to the peaceful exercise of trade union activities and drop all criminal charges for those trade unionists charged in connection with the January 2014 demonstrations; and
• take all necessary measures to stop arbitrary arrest, detention and prosecution of trade unionists for undertaking legitimate trade union activity.

The Committee also noted that, while some positive steps have been achieved in bringing the law in line with the Convention, serious compliance issues remain unaddressed.

Having examined the matter and taking into account the Government’s submissions and the discussion that followed, the Committee calls upon the Government of Cambodia to:

• provide the reports of the three committees charged with investigations into the murders of, and violence perpetrated against, trade union leaders to the Committee of Experts;
• ensure that acts of anti-union discrimination are swiftly investigated and that, if verified, adequate remedies and dissuasive sanctions are applied;
• with the help of ILO technical assistance, develop guidelines, a code of practice or a handbook on the policing and handling of industrial and protest actions;
• amend the Law on Trade Unions, in consultation with the social partners, to ensure compliance with the Convention;
• ensure that workers are able to register trade unions through a simple, objective and transparent process;
• continue to identify appropriate legal measures, in consultation with the social partners, to ensure that teachers, domestic workers and civil servants not covered by the Law on Trade Unions (LTU) have the freedom of association rights under the Convention;
• repeal the literacy requirement in sections 20, 21 and 38 of the LTU; repeal paragraph 2 of section 28 of the LTU on the automatic dissolution of workers’ organizations in case of complete closure of an enterprise or establishment and repeal section 29 of the LTU on the dissolution of employers’ and workers’ organizations initiated by members of those organizations;
• discuss with the social partners the possibility of allowing the formation of employers’ and workers’ organizations by sector or profession; and
• increase its efforts to make the Arbitration Council an effective and sustainable institution in handling labour disputes and ensure that binding Arbitration Council decisions are effectively enforced in law and in practice.

The Committee requests the government to provide information on the measures taken on all the above matters to the Committee of Experts before its November 2021 meeting.

Finally, the Committee recommends that the Government accept a direct contacts mission as soon as possible in order to give full effect to these conclusions and report progress to the Committee of Experts before its November 2021 meeting.

Government representative – Cambodia takes note of the conclusions and recommendations made by the Committee. Cambodia will continue working closely with relevant stakeholders to protect and promote the freedom of association as enshrined in the Convention. My delegation would like to reassure that Cambodia remains committed to honour the rights and obligations stipulated in the relevant instruments to which it is a party.

However, my delegation notes with regret that, despite our strenuous efforts and information and clarification provided, some matters are still selectively picked and chosen to paint the exercise of the freedom of association in Cambodia with a deep-dark brush ignoring the real progress on the ground. We note that some issues are outdated and have been addressed through the implementation of the road map. Its progress has been reported regularly to the ILO. Cambodia will continue working closely with our social partners to update the road map and its progress will be communicated in due course.

Regarding the unfounded allegations, we would like to reiterate that there is no arrest of unionists in Cambodia in connection to their union activities. Individuals are prosecuted and convicted by the court for offences they have committed.

Once again, my delegation would like to express our appreciation to all delegates for their constructive interventions and to the ILO and other partners for their extended support to Cambodia. Cambodia avails itself of the ILO’s continued technical support. However, my delegation would like to request an adequate time to review and implement the Committee’s recommendations, especially during this unprecedented difficult time. The direct contacts mission should not be considered in this case where there is no serious violation of the Convention.

Despite this challenging time, my delegation would like to assure that Cambodia will submit a detailed report by November 2021 and request the Committee of Experts to consider later whether the direct contacts mission is still necessary.

Individual Case (CAS) - Discussion: 2017, Publication: 106th ILC session (2017)



A Government representative recalled that a direct contacts mission (DCM) requested by the Conference Committee in 2016 had visited the country from 27 to 31 March 2017. The DCM had met with the Minister and high-level officials of the Ministry of Labour and Vocational Training (MLVT), representatives of the Ministry of Interior, the Ministry of Justice, the National Police, the secretariat of the Arbitration Council, the secretariat of the National Strike and Demonstrations Committee, representatives of workers’ confederations, federations, unions and associations, and representatives of interested national and international non-governmental organizations. The Government had reviewed and taken due note of the DCM conclusions and recommendations.

In connection with the murders of trade unionists, the Government deeply regretted and shared its profound sorrow for the loss of lives with the victims’ families. It was committed to taking all necessary measures in line with national laws and regulations to bring the perpetrators and instigators to justice so as to bring justice to the victims’ families. It was regrettable that, as had been reported to the DCM, the Government was not in a position to expedite the investigation due to the various challenges, including the lack of collaboration from the victims’ families. The Government was nevertheless committed to doing its utmost to conclude the investigation. Certain progress had been made and a tripartite subcommission would be set up to provide better access for and facilitate the submission of evidence and information from all stakeholders, especially from the victims’ families. This Sub-Commission would assist the Inter-ministerial Commission for Special Investigation on Case No. 2318 to expedite and conclude the investigation concerning the murder of trade union leaders, namely Chea Vichea, Hy Vuthy and Ros Sovanareth, pending before the Committee on Freedom of Association. Furthermore, the right to lawful strike and peaceful demonstration was well protected under the current legal framework and fully exercised. To secure the public security and interest, however, any violent strike or demonstration was punishable in accordance with the laws and regulations in force. The Government regretted the January 2014 events which were instigated by certain politicians by using the minimum wage as propaganda. As had been reported to the DCM, this incident was a riot, did not fall under the strike definition provided by international labour standards and was accompanied by violent actions and destruction of public and private property. When facing such incidents or threats to harm the public order, the Government must take immediate action to preserve peace and stability in the country. If in doing so, the police forces violated the law, such incidents were investigated and those responsible convicted. In response to the specific allegation made by the International Trade Union Confederation (ITUC) in this regard, the Government needed adequate time to report as it was still awaiting the relevant court decisions.

Regarding legislative issues, the newly adopted Law on Trade Unions (LTU) aimed to: protect lawful rights and interests of all persons covered by the Labour Law; as well as air and maritime transportation personnel; ensure collective bargaining rights; promote harmonious industrial relations; contribute to the development of decent work; and enhance productivity and investment. Due note was taken of comments and concerns raised by the social partners regarding the implementation of the LTU and the issues of trade union registration and representation had already been discussed. To make it easier for a newly established trade union to register, the MLVT had simplified and reformed the registration procedures. In particular, the LTU shortened the registration period of 60 days, as previously provided for under the Labour Law, to only 30 days. In other words, while the Labour Law required the applicant to wait 60 days, the LTU stipulated that a trade union should be considered as having been duly registered if the applicant did not receive any information from the Registrar within 30 days following its submission. Furthermore, Prakas No. 249 on the Registration of Trade Unions and Employers’ Associations was issued on 27 June 2016. It set out the relevant procedures and provided for the list of required documents and downloadable templates. In addition, while in the past, trade unions could apply for registration only at the MLVT in Phnom Penh, to save time and reduce expenses, the registration authority was now delegated to every Provincial Department of Labour and Vocational Training. Several trainings had been carried out for officials in charge of registration. A complaint mechanism had been established to settle any disputes arising from the registration process. However, as these were new regulations and practices, some difficulties occurred. There was always room for improvement and some points needed to be reviewed to remedy the challenges faced by the social partners in this respect. Concerning the recognition of the most representative status and capacity of unions to represent their members, an implementing regulation was being drafted in consultation with the social partners. Thus, at the moment, it was not necessary to amend the legislation; rather, its interpretation needed to be clarified through the tripartite consultation process. Several training courses for employers and workers had been conducted by the MLVT in collaboration with trade unions and employers’ associations to ensure a proper understanding of the legislation and its effective implementation. Furthermore, domestic workers and workers in the informal economy were not excluded from the scope of the LTU. They were free to form a trade union of their own choice as long as the conditions stipulated under the Law were satisfied. If they failed to meet the requirements for forming a union under the LTU, they could still join an association whose mission was to safeguard their rights and interests. Similarly, civil servants enjoyed and exercised their freedom of association under the Law on Associations and Non-Governmental Organizations (LANGO). While the Ministry of Interior could reject the registration if it endangered or adversely affected public safety or public order, the applicant was entitled to file an appeal to the court against such a decision. The laws and regulations in force, including the Law on Common Statutes of Civil Servants, the Law on Education, the LANGO, and the LTU and its implementing regulations, freedom of association of all workers, including teachers, civil servants, domestic workers and informal economy workers was fully protected and exercised. In order to further promote the exercise of this freedom, the Government would duly review the recommendations of the DCM and of this Committee to see if any further measures must be taken. The implementing regulations of the LTU were being drafted and submitted for tripartite consultation. On 9 May 2017, a tripartite meeting was convened at the MLVT to discuss four draft prakas to implement them. Further consultations would be conducted to address all the concerns of the social partners. The Government expected to receive ILO technical support in this respect and undertook to provide a report on the implementation of the legislation in due course.

Lastly, on the application of the Convention in practice, a zero draft Law on Labour Disputes Adjudication had been finalized and circulated for comments. The MLVT drafting team was working on the comments and feedback received from the ILO and the Arbitration Council and was awaiting further comments from the line ministries before proceeding with the tripartite consultation on the revised zero draft, with ILO support and technical assistance. Recognizing the effectiveness of the Arbitration Council, the Government was willing to promote its role by empowering this institution to hear individual disputes. The draft law would be submitted to the Parliament for adoption by the end of this year.

In conclusion, the Government was doing its utmost to promote the exercise of freedom of association and to consult with the social partners. The speaker called for a strong and close collaboration with the social partners to build a peaceful environment and industrial harmony for the benefits and interests of the people and economic development. Adequate time for the implementation of the recommendations was needed. The Government undertook to provide detailed information on the observations made by the social partners to the Committee of Experts in due course.

The Worker members highlighted that the application of the Convention had been examined by this Committee in 2007, 2010, 2011, 2013, 2014 and 2016. However, the Government continued to limit or effectively prohibit trade unions from exercising their right to organize. Since 2016 the situation had worsened substantially. The Government had curtailed freedom of association through highly repressive legislation. Perhaps the most harmful was the new LTU, adopted on 17 May 2016. The observations and direct requests of the Committee of Experts, as well as the observations of the DCM clearly indicated that its numerous provisions violated the Convention, despite the Government’s claim that the Law was fully in compliance with it. Those provisions included, for example, the requirements imposed on trade union leadership and the setting of a quorum for decision-making, as well as provisions that facilitated the dissolution of trade unions. Teachers remained unable to form a trade union and workers in the informal economy, including domestic workers, remained effectively excluded from the coverage of the law. While the Government suggested that they register as NGOs, this did not ensure the extension of trade union rights to them. The highly burdensome union registration process set out in the LTU and its accompanying regulations was of concern. The regulations required applicants to fill out numerous forms and provide excessive information, much of which was irrelevant, concerning not only workers, but also their extended family. In many cases, neither the Government nor the employer had provided workers with the information necessary to complete the application. Applications had been denied due to minor typos, reasons outside the scope of the law, or for no reason at all. Because the law prohibited trade unions from carrying out any activity prior to registration under threat of sanction, the excessive delays and arbitrary denials of registration had prevented workers from exercising their fundamental rights under the Convention. The registration process was in fact a request for prior authorization, exercised in an arbitrary manner. In addition, once a union was registered, each year it had to submit to the Government a complete list of its activities in order to maintain its registration. This was an extraordinary interference in trade union activities and was a violation of the Convention.

The provisions of the LTU on the most representative status (MRS) was also of serious concern. Only an MRS union, possibly representing as little as 30 per cent of its workers, could represent workers in grievances or in disputes before the Arbitration Council or courts, or bargain collectively on behalf of the workers. This was clearly a violation of freedom of association. In addition, the Government’s failure to regulate this issue had meant that trade unions had been unable to obtain an MRS certification and as a result, they had been unable to bring claims before the Arbitration Council or courts. This had led to a steep decline in the number of cases taken to the Arbitration Council, thus depriving workers of access to a remedy for labour law violations. Moreover, unions had been unable to bargain collectively and the existing collective agreements had expired with no union entitled to renegotiate them.

The draft Law on Labour Dispute Adjudication would create an excessively long dispute settlement process requiring workers and unions to go through multiple and unnecessary levels of adjudication. A broader contextual concern was the lack of independence of the judiciary. The Arbitration Council had been considered by all parties to be reliable and neutral. However, the law would place the Arbitration Council under newly created labour courts, which were likely to be influenced by the executive branch. Moreover, the draft provided for excessive fines, which disproportionately targeted workers and criminalized the peaceful exercise of fundamental freedoms. Even the proposed Minimum Wage Law imposed severe restrictions on freedom of association rights through, for example, the proposed ban on any form of “objection” to the agreed-upon minimum wage (section 26) and the prohibition on conducting independent research on the minimum wage (section 23). In addition, the Government continued to lodge criminal charges against union leaders and the courts, notorious for their lack of independence, kept those charges pending indefinitely. Union leaders were then required to continuously report to the court and were thus restricted in their freedom of movement. The pending charges thus harassed and intimidated union leaders. Since 2014, 25 leaders of the Cambodian Labour Confederation or its affiliates had been jailed. The Worker members shared the Committee of Experts’ deep concern that no one had been held responsible for the violence against those who took part in the protests for higher wages which took place in January 2014 and left five people dead, dozens seriously injured and 23 arrested. In that respect, they urged a credible, independent investigation. The Government claimed that the committees established to investigate the situation completed their work but that they could not release the reports. The Worker members, like the Committee of Experts and the DCM, urged the Government to release its findings and conclusions. Additionally, the murders of Chea Vichea and Hy Vuthy had remained unsolved for over a decade. In order to end the impunity, the Government needed to conclude those investigations and to bring the perpetrators to justice without any further delay.

The Government continued to limit the right to public protest. About 2,000 workers celebrating May Day were prevented from marching with a list of demands, including higher wages and an end to union-busting. The Worker members once again highlighted that workers continued to be disciplined or dismissed for their trade union activity. Those violations were rarely investigated effectively and workers rarely obtained a remedy, even when the Arbitration Council ruled in their favour. Finally, they recalled that the Committee on Freedom of Association had considered that “fixed-term contracts should not be used deliberately for anti-union purposes and that, in certain circumstances, the employment of workers through repeated renewals of fixed-term contracts for several years can be an obstacle to the exercise of trade union rights.” The Government had repeatedly sought to undermine the rulings of the Arbitration Council, which had interpreted the law to prohibit fixed-term contracts beyond a total of two years, and had attempted to extend their use for an even longer period. In conclusion, the Worker members strongly urged the Government to respect the Convention in law and in practice.

The Employer members recalled that the application of the Convention by Cambodia had been examined by the Committee over a number of years. There was nothing new concerning the substance of the case and all issues had already been discussed previously. They noted that a DCM had visited the country and wished that its report had been circulated. They also recalled that this case concerned the following four issues: (1) the investigation of violence and unsolved murders of several unionists; (2) legislative issues; (3) the inadequate recognition of the right to organize of teachers, civil servants and domestic and informal economy workers; and (4) the independence of the judiciary. In relation to the first point, since 2014, a large number of trade union leaders and activists had been charged with criminal offences for union activities and an increasing number of injunctions and requisition orders against trade unions and workers had been granted in labour disputes, which restricted trade union activities and industrial actions. A large number of allegations against the persistent use of violence by the police against workers during protest actions had been made. A framework for the exercise of freedom of association rights needed to be developed. The Employer members thus encouraged the Government and the social partners to look at the experience of other countries in this regard. With regard to the long-standing recommendations that expeditious and independent investigations be carried out into the murders of three trade union leaders, they noted the information provided by the Government on the establishment in August 2015 of a special Inter-ministerial Commission for Special Investigations.

In relation to the incidents that had occurred during the strikes and demonstrations of 2–3 January 2014, which had resulted in serious violence and assaults, death, and arrests of workers, as well as alleged procedural irregularities in their trials, the Government had provided information on the work of the following three bodies, indicating that: (i) the Damages Evaluation Commission had evaluated the damage arising from the unrest and the need for restitution; (ii) the Veng Sreng Road Violence Fact-Finding Commission had concluded that the violence was a civil unrest rather than an industrial action; and (iii) the Minimum Wages for Workers in Apparel and Footwear Section Study Commission had been transformed into the tripartite Labour Advisory Committee, which advised on and promoted working conditions, including minimum wage setting. The Employer members thus questioned whether discussing this aspect on an annual basis was the best use of the Conference Committee. They considered that the murders would be linked to freedom of association only if it could be shown that these were committed in order to frustrate freedom of association; otherwise they should be dealt with as criminal matters. They urged the Government to bring those investigations to a fruitful conclusion.

Concerning legislative issues, the Employer members noted that the LTU was promulgated in May 2016 and that, during the drafting process, a series of tripartite, bipartite, multilateral and public consultations had been conducted and the ILO’s comments had been included in the final draft. Nevertheless, the draft did not provide full satisfaction to the social partners. The employers were not satisfied with the minimum threshold before a trade union could be established, and the workers were dissatisfied with the scope of the law, which excluded civil servants. The ITUC had also raised the following issues with regard to the new LTU, as noted by the Committee of Experts: undue requirements for leaders and officers, including age, literacy, conviction records and permanent residence; matters such as quorum requirements for decision-making, which should be determined by trade unions themselves; the need to amend the section pertaining to the dissolution of trade unions; registration procedures; and the recognition of the MRS. These were valid questions and should be examined. It was therefore regrettable that no further details had been provided. Without such details it could only be recommended that all facts be made available to the competent authorities so that they could be examined.

Concerning trade union rights and civil liberties, the Employer members recalled that Article 2 of the Convention guaranteed the right of workers and employers, without distinction whatsoever, to establish and join organizations. This meant that the right to establish and join occupational organizations was guaranteed to all, including public servants and officials, whether or not they were engaged in the state administration at the central, regional or local level, were officials of bodies which provided important public services, or were employed in state-owned economic undertakings. They noted the Government’s indication that section 36 of the Law on Common Statutes for Civil Servants guaranteed freedom of association rights to civil servants appointed to a permanent post in the public service, that section 37 of the Law on Education guaranteed these rights to teachers and that the LANGO also provided for freedom of association rights. Nevertheless, the Employer members considered that some of the LANGO provisions contravened freedom of association rights of civil servants by subjecting the registration of their associations to the authorization of the Ministry of Interior, which was contrary to Article 1 of the Convention. They also observed that this law lacked provisions recognizing that civil servants’ associations had the right to draw up constitutions and rules, the right to elect representatives, the right to organize activities and formulate programmes without the interference of the public authorities, and the right to affiliate to federations or confederations, including at the international level. This had created a potentially ambiguous situation in which different and conflicting applications of the Convention might occur. The Employer members urged the Government, in consultation with the social partners, to take appropriate measures, including through the immediate amendment of the legislation, to ensure that civil servants, including teachers, who were not covered by the LTU, were fully ensured their freedom of association rights.

Lastly, while the role of the judiciary was not regulated by the Convention, the Employer members commended the Government on the progress made in relation to the drafting of a guideline on the operation of the Labour Court and the Labour Chamber. The Government had indicated that, with ILO technical assistance, the law on labour procedure of the Labour Court was in the drafting process and it intended to consult the social partners before the end of the year to ensure that the labour dispute system was quick, free and fair. The Employer members urged the Government to complete this work in full consultation with the social partners.

In conclusion, there was no new information, other than a range of new allegations. To shed light on these issues, the DCM report should be published so that it could provide the basis for the way forward.

The Worker member of Cambodia stated that since the entry into force of the LTU in May 2016, freedom of association had been further reduced. A whole new set of requirements had been established, such as the type of information to be supplied, which included the employment book, social security number, the names of the leaders and their phone numbers, and particulars of the spouse, parents and children. He stated that these requirements were excessive, unjustified and fear-inducing. Trade union registration could now be blocked simply because the required information had not been supplied. In some cases, the registration had been held up by government officers who returned documents for correction again and again. Moreover, bank accounts, financial statements, and activity reports would have to be supplied to the Ministry, in order to keep the registered trade union status. Trade unions and individuals could be prosecuted for inciting protests if they had objected to the minimum wage approved by the Wage Council. In short, the right of trade unions to manage their operations and conduct activities had been undermined. Collective bargaining and negotiations to resolve collective disputes had been paralyzed since the passing of the LTU. The Department of Labour and the Arbitration Council had precluded unions from filing collective disputes for their members either because they had not maintained their registration status, or because they no longer were the most representative union. Employers had taken advantage of this situation to reject negotiation of collective bargaining agreements or dispute resolution. He indicated that the problem before the Committee concerned the implementation of this new piece of legislation, rather than a lack of ministerial regulation. The absence of trade union dissolutions did not mean that trade unions could operate and perform their duties freely. As long as the LTU remained, trade unions and trade unionists would regularly be under the threat of being prosecuted for “illegal operation”. Moreover, for the sake of preserving “legal peace”, trade unions could lose the right to represent their members’ interests in the workplace. The requirements concerning age, literacy and absence of criminal records for trade union leaders had left out a number of unions from the informal economy. Workers in the informal economy could not produce their employment information and were in effect excluded. Additionally, no steps had been taken towards reforming the Law on Common Statutes for Civil Servants nor the Law on Education, in order to ensure equal rights for public servants and teachers. Employers had continued to use short-term employment contracts and to terminate workers for joining trade unions. Judicial harassment was ongoing and violence had remained unpunished. Little action had been taken by the Government to implement the legal protection of trade unions, to clear or reduce the arbitration backlog, including in relation to the reinstatement awards brought by the national centres to the Committee last year. Instead, the authorities and employers had been using the LTU to challenge the unions’ legal status or representativeness. Unionists had genuinely feared that the draft Law on Labour Procedure of the Labour Courts would further exclude minority unions from submitting collective disputes. Under the mandatory dispute procedure, trade unions’ right to declare industrial action would be undermined further. As regards freedom of association and respect of trade union rights, the situation had not improved since the Committee’s latest examination. The Government had to amend the LTU-related regulations in order to bring them into compliance with the Convention, drop all criminal charges against workers and union leaders, and resolve the reinstatement cases. Ultimately, the Government also had to take measures to ensure fair, independent and transparent investigation of previous murder cases, punish the perpetrators and provide compensation as prescribed by law.

The Employer member of Cambodia recalled that since Cambodia had been discussed by the Committee in 2010, the Government had shown strong commitment. A DCM had visited Cambodia in March 2017 and formulated recommendations in May 2017 to improve the situation. This did not give the Government sufficient time to implement the recommendations in time for the Conference. In respect of the recommendation concerning the exercise of freedom of association in a climate free of intimidation and violence, the Committee of Experts should indicate the time frame within which this process should be implemented, given the short period that had elapsed since the recommendations had been adopted. The recommendation concerning the right to organize of all workers, including teachers and civil servants, domestic workers, and informal economy workers, also required time, as engaging or consulting with organizations representing the workers and arranging for ILO technical assistance required one or two years. The recommendation to amend the LTU also required time, as did the recommendations pertaining to the practical application of the Convention. The speaker considered that this case should not be selected again in 2018.

The Government member of Malta speaking on behalf of the European Union (EU) (as well as the Candidate Country Montenegro, the former Yugoslav Republic of Macedonia, Serbia, Albania, Bosnia and Herzegovina, and Norway), recalled that this case had been discussed at the Conference Committee in 2016 and welcomed the fact that, as requested by the Conference Committee, a DCM had taken place. However, he expressed deep concern over the workers’ allegations outlined in the DCM report, notably the repeated use of violence by the police against workers during protest actions and the increased number of injunctions and requisitions orders granted in labour disputes to restrict trade unions activities. Further information should be provided on these allegations. The Government was called upon to take urgent and concrete actions to comply with the call of the Committee of Experts to ensure that trade union rights were fully respected and that trade unionists were able to engage in their activities in a climate free of intimidation or risk. The Government had also been requested by the Conference Committee to undertake full and expeditious investigations into the murders of trade unions leaders in 2004 and 2007 and other incidents of violence against trade union activists and to bring the perpetrators as well as the instigators of these crimes to justice. Concerns remained that despite the establishment of an Inter-ministerial Commission for Special Investigations, no concrete progress had been reported in this area. He therefore urged the Government to provide the information requested by the Committee of Experts on the outcome of the investigations of these cases. Moreover, information was sought from the Government regarding the findings of the commissions that were set up to investigate the death, injury and arrest of protesters that took place on 2–3 January 2014 following a labour dispute demonstration. Intervention of the police should be in proportion to the threat to public order. Furthermore, given the concerns that certain aspects of the LTU might not be in conformity with the Convention, the Government was encouraged to work further with the ILO to ensure that the Law was fully aligned. Finally, he noted with interest that the Law on Labour Procedure of the Labour Court was currently being drafted with the support of the ILO. He encouraged the Government to consult with the social partners on this Law and to adopt it shortly, so as to ensure the independence and effectiveness of the judicial system and further ensure that workers’ freedom of association rights were respected and enforced. It was important, also in the context of the EU’s Generalised Scheme of Preferences, that Cambodia took concrete and lasting measures to ensure the respect of core labour rights.

The Government member of Thailand speaking on behalf of the Association of Southeast Asian Nations (ASEAN), welcomed the progress made in the application of the Convention and noted the continuous efforts by the Government in ensuring and promoting freedom of association, in accordance with international labour standards. He encouraged the Government to take appropriate measures to implement the recommendations of the DCM. Emphasizing the essential role of social dialogue in promoting harmonious industrial relations, he encouraged the Government and the social partners to continue resorting to social dialogue at all levels to promote freedom of association. In light of the progress made by the Government, he requested the Committee to provide it with adequate time for proper review and effective implementation of the recommendations of the DCM.

An observer representing IndustriALL Global Union recalled that the LTU and its implementation continued to raise serious concerns with regard to their compliance with Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) as little action had been taken by the Government to enforce the legal protection of trade unions. There was a backlog concerning arbitral awards which continued to hinder the reinstatement of independent unionists and which were ignored by the employers with impunity. The Cambodian Labour Confederation reported a backlog of un-enforced arbitral awards, involving at least 2,826 members (2,584 of them in the garment sector) pending reinstatement since 2013. It was worrisome that employers used civil litigation to bypass the arbitration awards, and judicial harassment to terminate union leaders, who needed to prove anti-union discrimination in the civil court where the relevant provisions of the Labour Law were seldom considered. Enforcement of arbitration awards was appallingly low compared to the withdrawal rate by the workers who could not afford to wait years to get reinstatement. In many of these cases, trade unions were forced to stage a strike to press the employers to enforce reinstatement, followed by multiple criminal charges against them that were indefinite. The new Labour Dispute Procedure Law currently being drafted was likely to be used as an administrative tool by the Government to further control and punish trade unions who were seeking to redress violations of Conventions Nos 87 and 98 by imposing an extremely cumbersome dispute procedure under the newly created labour courts, which were certain to be dominated by the executive. The compulsory procedure and the provisions on the most representative union, as well as nomination of worker representatives by the conciliator to resolve the dispute, would eliminate the role of the minority unions and greatly reduce the space of trade unions in organizing their activities including industrial actions. The speaker urged the Government to undertake a consultative process on the draft Labour Dispute Procedure Law, to ensure the rights of the minority unions, and to further ensure that an adjudicatory system was accessible and provided for an expeditious and fair resolution of disputes in compliance with the Convention. The Government should accept technical assistance of the ILO and a high-level tripartite mission.

The Government member of the United States commended the Government for its ongoing engagement with the ILO and its constituents, including during the recent DCM, in order to bring its laws in line with international labour standards. However, noting that there were still areas for improvement, he expressed his continued support for the conclusions reached by both the Committee of Experts and the Conference Committee. In particular, he noted the Committees of Experts’ observations that certain key provisions of the LTU did not comply with the Convention. He recommended that the Government should consider the following actions: to amend the Law to cover workers who were currently excluded; to remove excessive registration requirements that may impact a union’s ability to become registered, form federations, or otherwise interfere in a union’s activities; to remove requirements for specific quorums or ballot thresholds, which may interfere with a union’s right to draw up its own constitution and by-laws; to remove minimum literacy and age requirements that interfere with the right to vote or ability to run for office; and to ensure that any subsequent implementing regulations do not further restrict the ability of unions to register and gain most representative status or access dispute resolution procedures. In light of the allegations that trade union leaders and activists had been charged with criminal offences for participating in union activities, and considering the information on the increase in unfavourable labour dispute resolutions intended to restrict union activities, he also recommended that the Government take steps to foster an environment that is free from violence, pressure, and intimidation for trade unionists. He urged the Government to take immediate action to effectively address issues of non-compliance with the Convention with the technical assistance of the ILO and in full consultation with the social partners, beginning by complying with the recommendations of the 2016 Conference Committee. He also urged the Government to provide a progress report to the ILO on its efforts to adopt the Law on Labour Procedure of the Labour Court.

The Worker member of Japan indicated that the Government should strive to create an environment allowing trade unionists to perform their role without fearing unfair criminal charges. Civil and criminal lawsuits had been filed against union leaders for different reasons, such as obstruction of business, disruption of traffic and incitement to strike. The lawsuits had allowed the charges to be kept pending indefinitely. Moreover, union leaders had been subjected to irregular summons and judicial harassment aiming to intimidate them and discourage trade union activities. She gave the example of five activists who had been taken to court by a garment company for staging a strike, and that of three activists who had been detained for a month after taking part in a protest for the reinstatement of sacked bus drivers. Cambodia Labour Confederation officers had been charged with offences related to a demonstration, despite not having attended. In various cases, companies had charged for loss of profit, sometimes the loss would amount to as much as US$60,000. She indicated that employers tended to resort to civil courts, in order to bypass the law and override Arbitration Council awards. She urged the Government to take measures to prevent the criminalization of union leaders.

The Government member of Switzerland said that Switzerland recognized the transparent and inclusive process carried out by the Government to adopt the Law on Trade Unions, particularly consultations with the opposition party and the organization of a public forum in March 2016. However, some provisions of the Law still gave cause for concern, and it was regrettable that no response had been received to previous requests – enabling the freedom of association to be exercised without violence and intimidation, ensuring compliance with the Convention in law and in practice, and ending impunity by prosecuting those responsible for the murders of and violence against trade unionists – as they remained valid. It was to be hoped that the Law on Labour Disputes Adjudication and the Law on Trade Unions would be brought into conformity with the Convention.

The Worker member of Australia stated that the Government had either directly participated in, or tacitly condoned, widespread discrimination, intimidation and violence against organized workers and their representatives. Members and leaders of independent unions were being routinely terminated. In the case of independent trade unions, the dismissal of their elected leaders or candidates, once the employer had been informed of their identity, entailed their destruction. In some cases, local unions were uprooted with all or a majority of its members. Trade union leaders had been dismissed for “serious misconduct” and fabricated offences. Strikers had been terminated, despite having observed all procedures. Legal protection was not enforced and the use of strike breakers had remained unpunished. In the event of reinstatement being awarded by the Arbitration Council the awards were simply ignored, in some cases, for years. The situation was exemplified by the Cambodian Alliance of Trade Unions (CATU) case and that of the Building and Woodworkers’ Trade Union in Cambodia (BWTUC). Three CATU officials had been dismissed and the remaining official had resigned following threats to her parents by company representatives. Three local BWTUC leaders had been sacked after a congress, more than 60 workers had been locked up by a security guard in order to prevent them from joining a strike, and another leader was threatened with legal action for allegedly stealing company property and inciting strike action. Such blatant and serious breaches of the Convention should not be tolerated, and the Government should be placed under the highest possible supervision.

The Worker member of the United States, jointly with the Canadian Labour Congress, recalled that the LTU expressly prohibited teachers from organizing. While the Government insisted that teachers were able to exercise their freedom of association through the LANGO, groups such as Human Rights Watch had decried this law as “designed to restrict the legitimate activities of civil society and human rights defenders in violation of the right to freedom of association”. The Committee of Experts had noted that the LANGO violated the Convention. Indeed, the Government used the LANGO for political discrimination against dissident organizations. For six months now, the Cambodian Independent Teachers’ Association had not been able to secure registration based on its political orientation against the ruling party. In practice, the LTU also prohibited informal economy workers from organizing. In order to form a union, informal workers must meet the requirement of including at least ten workers employed in the formal economy by a single employer. It was extremely difficult for informal economy workers to organize under this model. For example, the BWTUC, which organized in the informal construction industry, had been unable to register any of its seven local unions. This restriction affected the vast majority of Cambodia’s workforce. The Organization for Economic Cooperation and Development estimated that 76.7 per cent of Cambodian workers laboured in the informal economy. Over half of these workers were women; all of these workers were marginalized. In respect of domestic workers, most of the country’s 240,000 domestic workers were required to cook, clean, and take care of their employer’s children between eight and 13 hours a day. They worked seven days a week with no holidays. The Cambodian Domestic Workers Network, citing an ILO study, reported that 60 per cent of domestic workers earned less than US$50 a month, while only 4 per cent earn more than $100 a month. To put this into perspective, living wage researchers called for a monthly wage of at least $195 per month in 2016. Denying informal economy workers labouring in precarious industries the right to freedom of association is particularly concerning. The Committee had repeatedly commented that the LANGO did not provide equal trade union rights to public servants and informal workers. The LANGO was not an alternative to amending the applicable laws to provide full protection to these workers’ right to organize. She called on the Government to guarantee that all Cambodian workers enjoyed the protections of the Convention.

The Employer member of Australia supported the statements made by the Employer members and the Employer member of Cambodia. She indicated that, while a DCM had visited the country in March 2017, its report had not been made available until May 2017. From the excerpts of the report shared by the Employer member of Cambodia, it could be inferred that all parties had been consulted on the outstanding matters discussed by the Committee. The report had not disclosed evidence of intimidation or violence in the current environment. Moreover, employers had reported that the legislation set the minimum number of members required to register an enterprise union at ten, which was below the level originally suggested. The absence of intimidation or discrimination was evidenced by the existence of 3,400 registered enterprise unions. She recommended that the report of the DCM be published, allowing for this case to be closed and, should the need arise, to be reopened.

The Worker member of France, speaking also on behalf of the International Transport Workers’ Federation, said that freedom of association posed several problems in Cambodia and had a significant impact on the capacity of workers to engage in collective bargaining, and therefore on their working conditions and wages. While the Government was responsible for ensuring the application of international labour standards, enterprises were not necessarily exempt from responsibility: they had a duty of care throughout the whole supply chain. Unfortunately, a major construction enterprise was willingly contributing to the violation of workers’ fundamental rights within the common enterprise through which it operated in the country’s three airports and which, in 2012, had unilaterally made substantial amendments to the existing collective agreement, at the expense of the three trade unions represented in those establishments. On the grounds of creating a versatile workforce, the enterprise had started to harass workers in order to make them individually sign a so-called “voluntary” letter which rescinded all of the guarantees obtained for the period of the agreement covering 2011–13. Threats, intimidation, warning letters and discrimination then began to occur on a daily basis for those workers who refused to see their rights denied. The enterprise subsequently hired new, multi-skilled employees, who were prohibited from sharing the terms and conditions of their employment contracts with the three trade unions that were party to the agreement on wage scales and work task descriptions for 2004–13 and to the 2011–13 agreement. Employees had seen an increase in the volume and intensity of their work, a drastic reduction in overtime pay, the disappearance of promotion prospects and bonuses, and a two-thirds decrease in wages. At Siem Reap airport, the enterprise had prohibited strikes and regularly resorted to hiring workers on fixed-term contracts in order to break strikes. Voluntary corporate social responsibility, and in this case in a French multinational enterprise, was largely insufficient to guarantee fundamental rights within global supply chains. It was time to call for respect for fundamental rights in the supply chains of multinationals, respect for international labour standards and respect for the United Nations Guiding Principles on Business and Human Rights, and to support an ILO standard on decent work in supply chains. She expressed support for the initiative proposed by the Government of Ecuador for a binding United Nations treaty on business and human rights.

The Worker member of the Republic of Korea recalled that during the examination of the case in the Conference Committee in 2016, she had already referred to the increasing use of fixed-duration contracts (FDCs) in the garment industry, which created employment insecurity and undermined freedom of association. In addition to the garment sector, the use of FDCs had now also become a widespread practice in other sectors. In accordance with the national legislation, the duration of FDCs could not exceed a period of two years. However, in practice, employers ignored this by securing the authorization of the MLVT officers, or by getting workers to sign a waiver and promising them five per cent severance pay at the end of their FDCs. Although the law prohibited the non-renewal of FDCs based on anti-union discrimination, workers could have their contract not renewed for any reason. The widespread use of FDCs allowed employers to discriminate and dismiss union leaders and members with impunity. In this respect, she referred to a number of examples relating to the garment sector, the beer industry and other industrial workplaces. She urged the Government to ensure that the application of sections 67, 73 and 75 of the Labour Law concerning the restriction of the use of FDCs would be ensured by the Government so as to ensure that workers were able to exercise their trade union rights freely.

The Government representative thanked his ASEAN colleagues for their support and encouragement for better freedom of association in Cambodia and further thanked the delegates for their constructive inputs and support to improve the application of the Convention and fulfil the ambitious agenda to promote decent work in the country. The Government would continue to develop a strong legal framework through ensuring a more effective implementation of the legislation. Peaceful and harmonious industrial relations would be achieved through social dialogue at all levels. ILO technical assistance remained a key implementing strategy. The Government welcomed further support to implement the DCM recommendations in due course. A National Committee on Follow-up of the Application of the Ratified International Labour Conventions by Cambodia was being established in accordance with Royal Government Notification No. 432 issued on 29 May 2017. While reiterating the commitment of the Government to report any progress made in a timely manner, he indicated that adequate time was needed to implement the DCM recommendations.

The Employer members stated that the Committee had received a great amount of information, some of which was new and much of which was not. The discussion had confirmed that there was a good understanding of the issues at hand. The DCM report captured the essence of the case and summarized the recommendations that had been made over a number of years. The Government should seek ILO technical assistance to address remaining issues. The comments of the Committee of Experts should provide guidance in this process. They further encouraged the Government, through tripartite consultations, to effectively normalize the ability of all organizations and all workers to join organizations of their own choosing. The concerns of both employers’ and workers’ organizations with regard to the LTU, should be addressed through social dialogue, to which the Government had expressed its full commitment. Similarly, the DCM recommendations regarding the exercise of the right to industrial action should be addressed through tripartite dialogue. In this regard, the Employers recalled their disagreement with the Committee of Experts’ views concerning Convention No. 87 and the right to strike. They recalled the Government group’s statement of March 2015 according to which “the scope and conditions of this right are regulated at the national level”. Overall, social dialogue was the preferable course of action. The Government should be given time to address these issues internally.

The Worker members emphasized that each year the issues remained remarkably the same. There continued to be acts of violence against trade unionists by police or thugs with impunity. Anti-union dismissals of workers were committed regularly without any remedy or sanction. Harassment and intimidation of union leaders and activists by employers and state officials continued. Workers who carried out peaceful rallies were met by a phalanx of heavily armed police. The legal framework regulating trade unions was far from compliant with the Convention. They emphasized that the climate of violence and murders of trade unionists constituted a serious obstacle to freedom of association, as repeatedly highlighted by the International Labour Conference. A resolution adopted in 1970 stated that “freedom of association [was] wholly ineffective without the protection of the unionist’s fundamental civil liberties”. The LTU and the proposed new laws made Cambodia even less compliant with its legal obligations. The Government was using new laws and regulations to deny registration to trade unions which were not aligned with the governing political party. Unregistered unions were considered illegal and leaders could be sanctioned for carrying out legitimate trade union activity in the absence of registration, even when this had been arbitrarily denied. Fixed-term contracts were commonly used to frustrate trade unions. These problems were compounded by a highly-politicized judiciary. The Worker members noted with interest the DCM report, which reflected many of the concerns they and the Committee of Experts had raised previously. However, they noted that the Government had no intention of taking any measures to resolve the issues that the Workers group, the ILO and other UN bodies had raised. The report had been handed to the tripartite constituents in Cambodia and it was surprising to hear someone mention that the report had not been distributed. They hoped that it would also be sent to the Committee of Experts for its examination at its next session in November 2017. The Worker members urged the Government to formulate a roadmap together with all social partners in order to define time-bound actions to implement the recommendations of the Committee of Experts and the DCM.

Conclusions

The Committee took note of the oral statements made by the Government representative and the discussion that followed.

The Committee expressed deep concern at the acts of violence which resulted in the death, injury and arrest of workers.

Taking into account the discussion, the Committee called upon the Government of Cambodia to:

- ensure that freedom of association can be exercised in a climate free of intimidation and violence against workers, employers and their respective organizations;

- provide the reports of the three committees charged with investigations into the murders of, and violence perpetrated against, trade union leaders to the Committee of Experts, and ensure that the perpetrators and instigators of the crimes are brought to justice;

- ensure that acts of anti-union discrimination are swiftly investigated and that, if verified, adequate remedies and dissuasive sanctions are applied;

- keep under review the Trade Union Law, closely consulting employers’ and workers’ organizations, with a view to finding solutions that are compatible with Convention No. 87;

- ensure that workers are able to register trade unions through a simple, objective and transparent process;

- ensure that teachers, civil servants, domestic workers and workers in the informal economy are protected in law and practice consistent with Convention No. 87;

- ensure that all trade unions have the right to represent their members before the Arbitration Council;

- complete, in consultation with workers’ and employers’organizations, the proposed legislation and regulations on labour disputes, in conformity with Convention No. 87, so as to ensure that the labour dispute settlement system has a solid legal basis that allows it to fairly reconcile the interests and needs of workers and employers involved in the disputes;

- develop a roadmap to define time-bound actions in order to implement the conclusions of this Committee.

The Committee recommended the Government to avail itself of ILO technical assistance and to report progress to the Committee of Experts before its November 2017 meeting.

Individual Case (CAS) - Discussion: 2016, Publication: 105th ILC session (2016)



The Government representative stated that Cambodia fully respected the right to strike but that violent actions during strikes were prohibited. He pointed out that the right to strike provided under the Convention was subject to domestic law. According to article 37 of the Constitution, “the right to strike and to non-violent demonstration shall be implemented in the framework of law”. While exercising their right to strike, workers should respect the right to strike procedure as provided for by the domestic laws. The exercise of the right to strike should not cause any harm to the public order of the country. He affirmed that no worker who had not committed criminal acts, such as destroying public or private property or causing bodily injury to others had been arrested. The number of registrations of newly established trade unions kept increasing every year. In 2015, the Ministry had registered 237 new enterprise-based trade unions. As of today, 16 union confederations; 100 union federations; 3,434 enterprise-level unions; and eight associations of employers had been registered. The Ministry of Education, Youth and Sports organized annual, quarterly and monthly meetings with teachers’ representatives. As of 2014, 121 non-governmental organizations (NGOs) and associations had signed the Memorandum of Understanding for collaboration with the Ministry. Teachers were not prohibited from joining a strike or demonstration so long as the exercise of this freedom complied with national procedures, such as the requirement for the provision of minimum services, which was in line with the principles of international labour standards. Teachers and civil servants were free to form associations of their own choosing under the Law on Association and Non-Governmental Organizations (LANGO) which aimed at ensuring the protection of the right and freedom of every citizen to form associations and NGOs for the protection of their legal interests and public interests. This freedom was also guaranteed under section 36 of the Law on Common Statute of Civil Servants and section 37 of the 2007 Law on Education.

Referring to the murders of the trade union leaders, the speaker indicated that the Special Inter-ministerial Committee established for the investigation of these cases was diligently working, with strong commitment to bringing the real perpetrators to justice. Considering the crucial nature of the case, it was necessary to allow adequate time for the investigation process in order to ensure a fair and just conclusion. He hoped that the Committee and all stakeholders would recognize the Government’s commitment in this regard.

The speaker regretted the incident that took place in early January 2014. However, he clarified that this incident was a riot, which had been instigated by some politicians who had used minimum wages as propaganda, and did not fall under the definition of a strike, as provided by international labour standards. The demonstrators had blocked public streets at midnight, thrown burning bottles of gasoline and destroyed private and public properties, with damages estimated at around US$75 million. The Government had had to take action to restore peace and stability. He stated that a detailed report on this matter would be submitted to the Committee of Experts by September 2016.

A specialized labour court, in accordance with the provisions of the 2014 Law on the Organization of Courts, was being developed and would be operational in the near future. The Government, with the technical assistance of the ILO, was working on the draft Law on Labour Procedure of the Labour Courts. The tripartite consultation on this draft would take place by the end of 2016. The new Trade Union Law was intended to protect the rights and interests of workers and employers, guaranteeing the right to collective bargaining between workers and employers, improving industrial relations, and ensuring employment and national development. The entire drafting process had taken almost ten years and a long series of bipartite, tripartite, multilateral and public consultations had been conducted during this period.

A review of the implementation of this new law was also included in the Government’s agenda to address any issues uncovered during its implementation. He expressed the Government’s commitment to ensuring freedom of association through the implementation of all legislation and requested strong collaboration of the social partners in this regard.

The Employer members noted that this case had been examined six times by the Committee, the last time in 2014; that the Committee of Experts had made observations in this regard every year since 2007; and that the case had also been examined by the Committee on Freedom of Association. This case identified the need to look at the manner in which the Committee received and processed information. Until recently, this case had focused on a list of issues as opposed to focusing on the observed breaches of the Convention and evidence of progress, or lack thereof, on the part of the Government. The report of the Committee of Experts had observed the divergent information provided by workers’ organizations and the Government regarding a number of issues and had recalled the necessity of a climate free from violence, pressure or threats to the exercise of freedom of association. These divergences made it difficult for the Committee to make concrete conclusions and, unless these divergences were reconciled with Cambodia’s obligations under the Convention, the Committee would simply continue to request more information, which should be avoided. The citation by the Committee of Experts of the conclusions of the Committee on Freedom of Association regarding the trials held following the murder of a trade unionist some time ago illustrated the need to focus on conformity with Conventions and accountability for their implementation. The Employer members, while emphasizing that they did not condone violence of any nature towards workers, unions or employers, wondered how the concerns of the Committee on Freedom of Association regarding the criminal process that applied to someone convicted of murdering a trade unionist were relevant to the consideration by the Committee of matters of freedom of association.

With regard to the freedom of association matters which had been the subject of earlier recommendations, they noted that the Committee had previously been informed that the Government had set up three committees to investigate a number of acts of violence during strike actions in 2014 over minimum wages, among other issues. The Employer members noted the Government’s indication that it would provide the conclusions of these committees, which were still unknown, by the end of 2016. They also noted that progress had been made in addressing the concerns on the fragmented and disaggregated resources of the judicial process, including the availability of trained adjudicators. The Government had been providing training to adjudicators and had set up specialized labour units within the various levels of the judiciary, which should provide the specialized focus and experience necessary for labour issues to be expeditiously and effectively resolved. However, this was a work in progress. The new Trade Union Law existed against a background of complaints about poor treatment and harassment of trade unionists, apparent restrictions placed upon the establishment of new unions and in the context of the significant increase of new trade unions in the country in recent years. Both of these issues clearly needed to be managed. They noted that the Trade Union Law dealt in large part with the issues over which concern had been expressed and called upon the Government to fully implement the Law as soon as possible, in addition to providing a copy to the Committee of Experts. Unless evidence of non-compliance with the Convention could be uncovered, in which case such issues could be submitted to the Government for response, they deemed that the Committee should consider this particular issue as resolved.

Concerned about the restrictions that the Government had sought to place upon the engagement of union officials, specifically the literacy requirement which seemed to constitute a form of prior authorization contrary to Article 2 of the Convention, the Employer members urged the Government to review this and any other potential anomalies before it sought to give full effect to the Law. Noting that the Committee of Experts had requested information on any progress regarding the drafting of the guidelines on the operation of the Labour Court and the Labour Chamber, they suggested that the Government provide a brief report to enable any potential inquiries into the implementation of its various facets. Considering the journey of Cambodia to democracy, the steps it had recently taken were very significant, namely the introduction of a specialized labour court and the Trade Union Law, and it was therefore possible to consider Cambodia as a case of progress despite it not being characterized as such. The ILO had recently held consultations in the country regarding labour courts and the related institutions and a process of consultation with the social partners had also begun. The Employer members considered that a reasonable time period should be given to Cambodia before it was asked to report in detail on the progress made with regard to the Committee’s recommendations, which did not preclude raising issues of breach of the principles of freedom of association. They recommended that the Government be requested to provide a brief update on: (i) its activities with regard to the three investigative committees, as promised by the Government for December 2016; (ii) the establishment, resourcing and training of the labour court, while taking note of the active work done and the assistance of the ILO in that regard; and (iii) the implementation of the new Trade Union Law, taking into account the Committee’s remarks in this regard.

The Worker members regretted that, despite repeated calls from the ILO, the Office of the United Nations High Commissioner for Human Rights, trade unions, leading clothing brands and civil society organizations, the Government had decided to adopt a thoroughly regressive law that violated the Convention in many respects. Like the LANGO, which was extremely restrictive and likely to be applied to trade unions in the informal sector that were not recognized under labour legislation, the new law reflected an increasing hostility towards trade unions and civil society. The numerous violations of freedom of association went unpunished. In May 2016, a joint statement of three United Nations Special Rapporteurs had stated: “We are … troubled by the actions taken by Cambodian authorities to deter and disperse peaceful demonstrations and arrest individuals protesting what they see as the Government’s mounting persecution of civil society and unjustified restrictions of fundamental freedoms in the country”. Major reforms were therefore necessary.

The Worker members recalled that the trade unions had been consulted only once during the lengthy drafting process of the Trade Union Law, and that their opinions had not been taken into consideration. He also recalled the criticism that had been raised that the Law would be used to suppress the country’s independent trade union movement, just as it was taking action to obtain pay raises and better working conditions. On frequent occasions, the ILO had drawn the Government’s attention to a number of concerns and shortcomings, and the United Nations Special Rapporteur for Cambodia had drawn attention to several provisions that actually violated Cambodia’s Constitution. The Worker members noted in particular: (i) section 3 of the Trade Union Law which excluded a number of categories of workers from its scope, including public servants, teachers, informal workers and domestic workers; (ii) section 14 which prohibited trade unions from concluding legal agreements before they were registered; (iii) section 17 which required trade unions to provide the Government with an excessive amount of information on their finances and activities, or face having their registration cancelled; (iv) section 20 which required trade unions to meet illegal criteria relating to age and literacy and subjected them to extensive criminal background checks that could disqualify persons who had participated in legitimate trade union activities; and (v) section 29 on requests for the dissolution of a trade union which did not specify who could make such a request. The penalties to which employers were liable under the Law were too lenient to be dissuasive. They called on the Government to rectify the situation in order to bring the Law in line with the Conventions of the ILO.

With regard to the violence used against demonstrators in January 2014, which had resulted in five deaths and dozens of people being seriously injured and being arrested without warrant, the Worker members deplored the fact that no sanction had been imposed and called for an independent and credible inquiry into the incidents. They supported the Committee of Experts’ request that the Government make public the findings and conclusions of the inquiry. Citing specific examples, they said that the criminalization of trade union activities dissuaded unions from freely organizing actions. As to the illegal resort to fixed-term contracts that was common practice in certain sectors, the Committee on Freedom of Association had recalled “that fixed-term contracts should not be used deliberately for anti-union purposes” and that “in certain circumstances, the employment of workers through repeated renewals of fixed-term contracts for several years can be an obstacle to the exercise of trade union rights”. Yet, that was precisely the kind of contract which was used in the clothing industry. Despite the Arbitration Council’s ruling that the law must be upheld, this was not the case and the Government had attempted to undermine the Council on several occasions.

The Worker members gave the example of a transport company’s violation of freedom of association which they believed clearly showed the gross absence of workers’ rights in Cambodia. Two union leaders had been arrested for organizing a peaceful demonstration calling for the recognition of a trade union and compliance with arbitration rulings. Criminal charges had even been brought against union leaders who had not been at the demonstration, while the management of the enterprise refused to implement the decisions of the Arbitration Council. That kind of behaviour needed to cease, and the Government was urged to put a stop to the repression and to respect freedom of association.

The Employer member of Cambodia stated that he was pleased that the Trade Union Law, which was in line with international labour standards, had been adopted after significant formal tripartite consultations. He considered that the procedure for the establishment of the specialized Labour Court, which was carried out with the support of the ILO and following tripartite consultations, would take significant time and requested that sufficient time be given to pursue these processes. The speaker highlighted the challenges which existed with the Cambodian union movement in enabling a healthy and respectful industrial relations environment, such as: (i) the existence of a fragmented union movement that was not representative that led to infighting and illegal behaviours among unions (this created great conflict within enterprises in particular because unions were representing personal agendas rather than workers); (ii) outside interference of unions in enterprises where they were not represented (outsourcing interference often resulted in intimidation and interference, disruption of the workplace, and the exploitation and threatening of workers); (iii) minority unions exploited the law for personal gain precisely because they were not representing the interests of workers; and (iv) the inability to use collective bargaining agreements effectively and to realize their benefits for workers, employers and industry. Referring to the comments made by the Committee of Experts in 2015, he stated that the unions also had the responsibility to ensure that freedom of association was exercised in a climate that was free from violence, pressure or threats of any kind. Unions should exercise their rights within the laws of the country and should be held accountable, if their actions were illegal. The minimum wage negotiations of 2014 had been turned into political demonstrations that ended in violence. Employers did not support violence of any kind, and those who had committed crimes needed to be held accountable, regardless of whether or not they were an employer or worker. The protection of freedom of association for civil servants and teachers was stipulated under section 36 of the Law on Common Statutes of Civil Servants and section 37 of the Law on Education. He hoped that the Government would continue to report to the Committee on progress made and urged it to do so through the inter-ministerial committee responsible for reporting on ILO matters.

The Worker member of Cambodia recalled that Cambodia had ratified 13 ILO Conventions and that Convention No. 87 had been ratified in 1999. Although many laws were in force, which ensured trade unions’ rights, law enforcement was still challenging. Independent trade unions still faced serious problems including murder, arrests, detention, union discrimination and interference in their activities. He recalled the murder in 2004 of Chea Vichea, Ros Sovanareth and Hy Vuthy, three trade union leaders. Since then, murders still occurred, as five workers had been killed in 2013. He also mentioned various cases in which trade union leaders had been injured, prosecuted, imprisoned or dismissed without reinstatement or compensation. Legal justice was rarely found in cases of discrimination of independent union leaders and members. The Law on the Organization of the Courts had been adopted in 2014 without consultation with unions. The drafting process of the Law on the Labour Procedure of the Labour Court was taking place. The Government was encouraged to start consultation with the unions with regard to this law. Regarding unfair dismissals of trade unionists, 80 per cent of workers were employed under fixed-term contracts which were used by the employers to easily terminate workers if they joined independent unions. Women workers were easily dismissed if pregnant. The speaker also recalled that in some cases, political parties and companies interfered with the activities of trade unions, and that these unions could therefore not be regarded as independent and autonomous, in violation of Article 3(2) of the Convention. Moreover, the Trade Union Act adopted in May 2016 was still very restrictive for trade unions: the quorum required for voting for a strike was 50 per cent plus one of the total members. Trade unions were also required to send financial reports to the Ministry of Labour. Also, the concerned parties had the right to audit trade unions’ finances and dissolve unions. The Government was urged to take the necessary measures to: (i) ensure that trade unions were free from the threat of murder, violence and interference; (ii) guarantee that fair, independent and transparent investigations of the previous murder cases were carried out, perpetrators were punished and victims compensated according to the law; (iii) ensure that charges filed against the leaders of the six national trade union centres were dropped; (iv) stop employers from using the judiciary against independent unions; (v) stop interfering in the activities of trade union organizations and protect trade unions from employers’ interference; (vi) work in collaboration with trade unions to amend the Trade Union Law in compliance with international labour standards; (vii) provide for a duration of fixed-term contracts of not less than two years to avoid discrimination against trade unionists and pregnant workers; and (viii) ensure that the new Labour Court would have a tripartite composition and would be independent, professional, efficient and ruled by consensus in deciding labour cases, and that access to it would be quick and free of charge. The ILO should assist the Government to address these issues through a tripartite mission.

The Government member of the Netherlands, speaking on behalf of the European Union (EU) and its Member States, as well as Albania, Iceland, the Republic of Moldova and Norway, indicated that they attached great importance to human rights, including freedom of association, and recognized the important role played by the ILO in developing, promoting and supervising international labour standards. The Government was urged to ensure that trade union rights be fully respected and trade unionists be able to engage in their activities in a climate free of intimidation or risk. In this regard, they hoped that the special investigative committee, established in June 2015 to resolve the criminal case regarding the murders of Chea Vichea, Ros Sovannareth and Hy Vuthy, would keep the national employers’ and workers’ organizations informed of the progress of its investigation on a regular basis. Noting the recent adoption of the Trade Union Law, they expected the Government to implement it in a fair and impartial manner, and called upon the ILO to assess and ensure that all of its provisions were in compliance with the Convention. Encouraging the inclusion of civil servants, teachers and domestic workers in the scope of the new law, they called upon the Government to: (i) provide the information requested by the Committee of Experts on the measures taken or envisaged to ensure that the rights of these groups were fully ensured under the Convention; (ii) avail itself of the technical assistance of the ILO; and (iii) comply with its reporting obligations.

The Government member of Thailand, speaking on behalf of the Association of Southeast Asian Nations (ASEAN), welcomed the information provided and the progress made by the Government. Expressing appreciation for the adoption of the Trade Union Law, he encouraged the Government to effectively implement it. He also commended the commitment and efforts of the Government to establish labour courts in the near future and to develop a minimum wage law, in compliance with international labour standards. Emphasizing the commitment of the Government to strengthen social dialogue in the country, he urged the Committee to take the significant progress made into account.

The Government member of the United States expressed concern about the persistent limitations on the right to freedom of association and the lack of protection for workers’ rights in Cambodia. She referred to the allegations included in the recent observations of the Committee of Experts regarding ongoing impediments to the registration of new independent trade unions, and the persistent intimidation of teachers from joining trade unions. Genuine freedom of association could only be exercised in an environment that was free from violence, pressure, and threats of any kind. While noting the information provided by the Government on the work of the three committees (the damages evaluation committee, the Veng Sreng road violence fact-finding committee, and the minimum wages for workers in apparel and footwear sector study committee) that were established in the wake of the serious episodes of violence, death and arrest of workers in 2014, she remained concerned by allegations of ongoing arrests and detention of workers engaged in demonstrations. She echoed the Committee of Experts’ request for additional information on the conclusions and recommendations of the three committees and urged the Government to take all necessary measures to prevent violence against trade unionists, including through full and expeditious investigations and the prosecution of perpetrators. Since 2008, the ILO had been engaged with the Government and its social partners in drafting a Trade Union Law. Despite numerous consultations and recommended revisions over the years, the Government had adopted the Trade Union Law, which appeared to fall short of compliance with international labour standards. The main concerns were: (i) the exclusion of certain categories of workers from the right to join unions; (ii) the high threshold requirements for strike ballots; (iii) excessive and burdensome audit requirements and unclear provisions regarding the relevant parties that may request an audit of union activities; (iv) the ability of courts to interfere in the dissolution of trade unions, which should instead be determined by the union’s statute and bylaws; and (v) the lack of sufficiently dissuasive penalties for non-compliance. She urged the Government to submit a copy of the Trade Union Law to the Committee of Experts for review in 2016, and to take immediate action with the technical assistance of the ILO and in full consultation with the social partners to address issues of non-compliance with the Convention.

The Worker member of Australia recalled that under article 36 of the Constitution, Khmer citizens had the right to form and join trade unions. Although that could be considered a decent starting point for a legally guaranteed right to freedom of association, the reality was that in recent years there had been a multifaceted, sustained and even deadly attack on the rights of workers to associate and organize. The uneven application of criminal law was an indicator of the deteriorating situation. There had been violent attacks and trade union leaders had even been murdered. However, perpetrators had gone unpunished in most cases. Nevertheless, criminal law had been invoked repeatedly and enthusiastically by the Government against workers and trade union leaders. No fewer than six leaders of the national trade union centres had been charged for intentional violence and with regard to damages after the 2014 strike. The President of the Cambodian Labour Congress was currently under court supervision, which restricted him from taking part in protests or approaching workers in designated areas, leading strikes and demonstrations or changing his home address. Up to 198 other criminal cases involving workers and unions mostly in the textile and clothing industry, were also pending. According to an analysis of the new Trade Union Law by the Office of the United Nations High Commissioner for Human Rights in Cambodia, there were a number of key areas where the application of criminal law held direct implications with regard to the ability of people to form and join trade unions. These included: (i) the mandatory requirement that trade union leaders declare that they had never been convicted for any criminal offence; and (ii) the capacity for the new Labour Court to dissolve entire trade unions where individual officers had been found to have committed an offence or even serious misconduct. Any political effort to criminalize unionization and to invoke criminal law as an instrument to repress union organization would only damage Cambodia’s international reputation and the Government was urged to reject that approach.

The Worker member of the Republic of Korea recalled that in its report adopted in March 2016, the Committee on Freedom of Association had indicated that fixed-term contracts should not be deliberately used for anti-union purposes and could be an obstacle to the exercise of trade union rights. Many garment factories had built an entire workforce by employing workers through repeatedly renewed fixed-duration contracts (FDCs) of short duration. While violating the Labour Law, this phenomenon was widely applied in practice and was increasing. The legal implications of employment under FDCs were numerous, including fewer rights and benefits for workers; easier dismissal and shorter notice periods; difficulties in proving anti-union retaliation; reduced compensation upon termination of contract; and limited access to maternity leave benefits. The use of FDCs created great instability for workers, who reasonably feared that their contracts would not be renewed if they failed to obey the employer or if they joined a trade union. Furthermore, in a situation where the majority of contracts were FDCs, it was difficult to identify trade union leaders, who would not be able to complete a two-year term. The one-year work experience required for trade union leaders by the labour legislation could be hard to accrue under FDCs. A Memorandum of Understanding in the garment industry had been signed in 2012 between the Garment Manufacturers’ Association in Cambodia (GMAC) and several trade unions, and included a commitment to reach a separate agreement on this issue. However, no negotiations had been initiated on this matter. Supporting the recommendations of the Committee on Freedom of Association, the speaker therefore urged the Government to take all appropriate measures to promote these negotiations with a view to reaching an agreement on the use of FDCs and ensuring that workers in the garment industry were able to exercise their trade union rights freely.

The Government member of Canada strongly encouraged all member States to respect the terms of the Convention and recalled that the onus to ensure that freedom of association be exercised in a climate that was free from violence, pressure or threats of any kind was on governments. While some positive steps had generally been taken, further action was required and information had to be provided, as highlighted by the Committee of Experts. The concerns on the Trade Union Law were mainly related to insufficient protection of the right of all workers and employers to freely set up organizations of their own choosing, and to the right of these organizations to decide on internal matters without interference. In this regard, the Government should reopen discussions through social dialogue and within the National Assembly with a view to revising the law. He also expressed disappointment regarding the LANGO, which was restrictive of civil society, as its application to occupations not covered by the Trade Union Law could constitute a violation of the Convention. Finally, looking forward to the conclusions and recommendations of the committees regarding the incidents of violence of 2014, he emphasized the urgent need to ensure the effectiveness of the judicial system as a safeguard against impunity, and as an effective means to protect workers’ rights during labour disputes.

The Worker member of the Philippines identified with the widespread anti-union discriminatory practices experienced by workers in Cambodia. Union and federation members and leaders who were independent and critical of employers were increasingly becoming the target of harassment, discrimination and unfair dismissals by their employers. Since the end of 2013, 867 worker members of the Cambodian Labour Confederation (CLC) had been dismissed due to their union membership and activities, and only 67 of them had been reinstated. The rejection by employers of the arbitration award on reinstatement, in addition to the lack of government will with regard to enforcement, was seriously undermining the unions freely chosen by workers. The speaker gave the example of the November 2014 strike at the Siem Reap Airport, a ten-day protest during which replacement workers had been hired and following which seven union leaders were terminated for organizing the strike. Airport management had asked the union’s deputy chair to stop addressing complaints against the company and had offered to reinstate him in exchange for his cooperation. Instead of rectifying the unfair dismissals, the Ministry of Labour requested the employer to give monetary compensation to the dismissed union leaders, who to this day had not been reinstated and were unemployed.

The Worker member of Japan expressed concern that section 29 of the Trade Union Law guaranteed the right to “concerned parties”, or 50 per cent of the total members of a union to take the initiative of filing for dissolution of the trade union to the Labour Court. In the interest of industrial relations, the dissolution of a trade union should only be taken as a last resort, and after exhausting other possibilities with less serious effects for the organization as a whole. Moreover, the dissolution of a trade union should be dealt with according to the provisions of the union’s constitution and bylaws. The provisions of the LANGO concerning the mandatory registration for all domestic and international associations, the unfettered discretion of the Ministry of Interior over union registration, and the requirement of “political neutrality” applicable to all associations and organizations, constituted violations to the right to freedom of association. He urged the Government to consult with the trade unions and to consider the revision of these laws in order to be fully consistent with the Convention.

The Government representative thanked his ASEAN colleagues, in particular Thailand, for their support and encouragement for better freedom of association in Cambodia. He noted all of the constructive comments made by the respective representatives of employers and workers, as well as other Government delegates, which could serve as valuable inputs to achieve their ambitious agenda in building a future with decent work. The Government had been working actively in developing a strong legal framework through the adoption of laws and regulations. The Trade Union Law had been recently adopted, its implementing tools were being developed, and the drafting process of the Law on Labour Procedure of the Labour Court was under way. The Government was working closely with Better Factories Cambodia and the ILO Better Work Programme, to improve and strengthen labour inspection in order to ensure better working conditions. For further improvement of the effective implementation of international labour standards, as well as national laws and regulations, the participation and collaboration of all parties concerned was a necessity. While reiterating the commitment of the Government to fully complying with its reporting obligations, he assured that a detailed report would be submitted to the Committee of Experts by September 2016.

The Worker members indicated that the members of the Committee could only encourage the Government to make rapid progress on the path towards freedom of association. However, they had heard from many delegates, and especially from the Worker member of Cambodia, a description of the situation which remained very serious. They recalled that, concerning the murders of Chea Vichea, Ros Sovannareth and Hy Vuthy, the Committee on Freedom of Association had had to resort to the exceptional use of paragraph 69 of its Procedures for the examination of complaints alleging violations of freedom of association in order to invite the Government to appear before it and to provide missing information. The Government had accepted the invitation to provide information in May 2015. Noting that more than a year had passed, they emphasized the importance of replying to the requests made by the Committee on Freedom of Association. Impunity remained a critical issue.

They recalled that Cambodia had been under the constant supervision of the Committee since 2006 for the application of this Convention, of the Worst Forms of Child Labour Convention, 1999 (No. 182), or for its failure to submit reports. Every year, the issues remained the same: unpunished acts of violence against trade unionists (including murder); anti-union dismissals; harassment and intimidation by state officials; prohibition of the right to free speech and assembly; and a legal framework which was not in compliance with the Convention. Fixed-duration contracts, the subject of the 2015 observation of the Committee of Experts and the 2016 conclusions of the Committee on Freedom of Association were routinely used to frustrate trade unions. These problems were compounded by a politicized judiciary that did not guarantee justice. They reiterated their concerns that, despite the intervention of the ILO, the UN, the Global Unions, and the global garment brands, the Government had missed yet another opportunity to pass a law compliant with the Convention and had instead adopted a law which contained numerous provisions which violated the Convention. Workers had been attacked and assaulted when they had peacefully protested following the adoption of the law.

Global brands had joined workers on repeated occasions to express concern regarding the negative environment in the country for workers. The country could and should immediately change its course and establish a legal environment enabling the full exercise of the right to freedom of association, which should also be ensured in practice. The Worker members called on the Government to: (i) bring the Trade Union Law into full conformity with the provisions of the Convention, in cooperation with the social partners and with the further technical assistance of the ILO; (ii) ensure that the rights under the Convention of teachers and civil servants, as well as workers in the informal economy who were not covered by the trade union legislation, were fully ensured; (iii) conduct full and expeditious investigations into the murders of the trade union leaders mentioned in the Committee of Experts’ report and prosecute not only the perpetrators but also the instigators of these crimes; (iv) ensure that the Special Inter-Ministerial Committee kept the national employers’ and workers’ organizations informed on a regular basis of the progress of its investigations, with a view to promoting social dialogue and putting an end to the impunity surrounding the acts of violence against trade unionists; (v) conduct an independent investigation into the episodes of violence perpetrated against trade unionists on 3–4 January 2014, including injuries and deaths, and prosecute both the perpetrators and the instigators of these crimes; (vi) ensure that workers were able to engage freely in peaceful public demonstrations; (vii) drop criminal charges against trade union leaders for their participation in peaceful demonstrations; and (viii) ensure the application of Arbitration Council decisions with respect to fixed-duration contracts, limiting the combined time employed under these contracts to two years. In light of the lack of progress since this Committee had last heard this case, and given the multiple times this case had been before the Committee in recent years, they urged the Government to accept a High-level Tripartite Mission in 2016.

The Employer members recalled the history of this case and the concerns raised by the Workers with regard to the lack of progress on some of the issues discussed and the changes initiated by the Government. On the other hand, the Government had provided information on the recent initiatives it had taken, including: (i) the introduction and ongoing implementation of the new structure for the labour courts and labour chambers, and its commitment to the development of these institutions; (ii) the introduction of training and resources in the labour courts and labour chambers; and (iii) the adoption of the Trade Union Law and its commitment toward effective implementation. They echoed the Workers’ call for the expedited completion and implementation of these initiatives, but considered that considerable progress had already been made and that Cambodia should be given latitude to prove it could bring these initiatives to a rapid and successful conclusion, namely the completion of the investigations of the three committees into the 2014 murders, due to be completed this year; the completion of the guidelines and the manner in which they would operate; and the effective implementation of the Trade Union Law through an approach which balanced workers’ and employers’ rights. They believed the country should be given leeway but urged the Government to provide a report to the Committee, as soon as possible, on the actions it had taken to fully implement the initiatives it had undertaken.

Conclusions

The Committee took note of the information provided by the Government representative and the discussion that followed on issues raised by the Committee of Experts.

The Committee noted the Government’s proposal to establish new labour courts, as well as noting continued issues regarding the freedom of association for workers organizations.

Taking into account the discussion of the case, the Committee urged the Government to:

• - ensure that freedom of association can be exercised in a climate free of intimidation and without violence against workers, trade unions or employers, and act accordingly;
• - ensure that the Trade Union Law is in full conformity with the provisions of Convention No. 87 and engage in social dialogue, and with the technical assistance of the ILO;
• - ensure that teachers and civil servants are protected in law and practice consistent with Convention No. 87;
• - undertake full and expeditious investigations into the murders of and violence perpetrated against trade union leaders and bring the perpetrators as well as the instigators of these crimes to justice.
• - ensure that the Special Inter-Ministerial Committee keeps the national employers’ and workers’ organizations informed on a regular basis of the progress of its investigations; and
• - report to the Committee of Experts before its November 2016 session with up-to-date information on its activities with regard to the three investigative committees already established, on the establishment, resourcing and training of the labour jurisdiction, and on the implementation of the new trade union law.

The Government should accept a direct contacts mission before the next International Labour Conference in order to assess progress towards compliance with these conclusions.

The Government representative indicated that, regarding the Committee’s proposal to accept a direct contacts mission, it was necessary to first consult the relevant government institutions. His Government would contact the ILO in due course.

Individual Case (CAS) - Discussion: 2014, Publication: 103rd ILC session (2014)



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.

Individual Case (CAS) - Discussion: 2013, Publication: 102nd ILC session (2013)

A Government representative, referring to the case of Chea Vichea, Ну Vuthy and Ros Sovannareth (Committee on Freedom of Association, Case No. 2318), indicated that the Prime Minister had recently issued an order (letter No. 397 of 6 March 2013) to establish a Coordinating Committee with the exclusive mandate to coordinate the ministries involved to respond to the questions relating to Case No. 2318. In addition, the Prime Minister had issued a second order (letter No. 1080 of 6 June 2013) to establish a permanent committee which would include all social partners and 20 different ministries and which was mandated to develop the national employment policy and to respond to all questions raised by the ILO. The two orders would be translated and submitted to the Committee of Experts in due course. Concerning the freedom of association issues, his Government respected the principles underlying the Convention and the Cambodian labour legislation gave full effect to its provisions. Professional organizations of employers and workers could freely organize and exercise their rights. To date, there were 12 union chambers, 76 union federations and 2,765 trade unions at the enterprise level, mostly in the garment and shoe sector comprising around 460 enterprises. Moreover, workers’ organizations were playing a crucial role in drafting national legislation and were actively participating in discussions on labour issues. In its effort to address a variety of industrial relations challenges and strengthen social dialogue, the Government had established a tripartite committee to monitor strike actions, another tripartite committee on labour contracts and yet another tripartite committee on minimum wages. These three committees were composed of representatives of employers and workers who were freely elected by their respective organizations.

Moreover, the speaker recalled that a new draft Trade Union Law had been drawn up with the active involvement of social partners and technical assistance from the Office. The new draft legislation was now being considered by the Council of Lawyers of the Council of Ministers. Upon receiving the finalized draft, the Ministry of Labour and Vocational Training would forward it to the Committee of Experts. Furthermore, the Ministry of Justice was instructed to draft the labour court law in consultation with all social partners, as per established practice. In relation with the independence of the judiciary and the Government’s reporting obligations regarding recently developed laws, such as the Anti-Corruption Law, the speaker indicated that one of the newly established committees referred to above would take responsibility for responding to the Committee of Experts’ requests, probably after the general elections of July 2013 and as soon as it had been familiarized with the ILO procedures, in particular the work of the supervisory bodies, and he requested the Office to provide assistance and training in this regard. In addition, the Government had appointed a labour attaché to Cambodia’s diplomatic mission in Geneva who would facilitate communication and dialogue between the Office and concerned bodies in Cambodia. Finally, the Government representative stated that significant progress had been made over the years but as the labour market changed and industrial relations diversified, there was need to continue to respond to the needs of employers and workers through appropriate legislation and social dialogue.

The Worker members recalled that, in its 2007 and 2011 conclusions, the Committee had already referred to the murder of trade unionists, to harassment, to the arrest and disappearance of union leaders, to the inefficiency and lack of independence of the justice system and to the climate of impunity. The Committee of Experts had used the very same words in its comments to the Government ever since 2003. In its latest observation, it noted that the murder of trade unionists Chea Vichea, Ros Sovannareth and Hy Vuthy, had still not been elucidated and once again raised the question of the efficient and independent functioning of the system of justice and of the climate of impunity. Although the Government had been requested to take concrete measures and, specifically, to adopt the draft laws on the status of judges and attorneys and on the functioning of tribunals without delay and to send copies to the Committee, there had been no progress at all. As to the harassment encountered by the members of the Cambodian Independent Teachers Association (CITA), that was a reflection of the more general problem that civil service unions were not covered by the draft Trade Union Law and were treated as ordinary associations. Moreover, as in many countries, the use of temporary contracts and proliferation of short-term contracts in Cambodia directly or indirectly undermined the possibility for workers to join trade unions. All workers without distinction had to be allowed to join the trade union of their choice. The Worker members stressed that the problems referred to were particularly serious in the textile sector, which was an essential part of the Cambodian economy as it accounted for 80 per cent of the country’s exports. Although it employed skilled manpower, the workers’ conditions of pay and employment were bad and workers were under tremendous pressure. The enterprises that imposed the conditions under which they worked were subcontractors to world-famous trade names that were not bothered by such practices. Yet, there was an obvious link between decent working conditions and freedom of association in an enterprise. The climate of violence and corruption that prevailed rendered the trade unions’ task difficult and it was the workers who suffered. A free trade union movement that was not exposed to violence, pressure and threats was essential if the social partners were to conduct an effective dialogue and thus guarantee conditions of employment that were in line with ILO standards. The detention of trade unionists for reasons connected with their activities in defence of the interests of workers constituted a serious interference with civil liberties in general and with trade union rights in particular. The major economic interests of the textile sector would be much better protected if freedom of association was guaranteed.

The Employer members noted that this case constituted a challenge for the Committee because, despite seven observations addressed by the Committee of Experts since 2007, a direct contacts mission in 2008, a double footnote in 2010 and a Conference discussion in 2011, little progress had been made. A law on peaceful demonstrations had been adopted in 2009 but appeared to be at variance with the provisions of the Convention. Issues such as a climate of impunity, a context of violence directed at union leaders and lack of independence of the judiciary remained unresolved. Workers continued to denounce acts of violence and harassment, labour courts still did not exist, and the United Nations (UN) Special Rapporteur on the situation of human rights in Cambodia had recommended that measures should be taken to enhance the independence of the judiciary. The Employer members welcomed the Government’s indication that it had adopted anti-corruption legislation and put in place an anti-corruption unit, and requested it to provide information on the composition and mandate of that unit, together with a copy of the law, to enable the Committee of Experts to better understand the new measures. In addition, the Employer members urged the Government to provide in its next report information on any progress made with regard to the creation of labour courts. They also urged the Government to take steps to provide for an independent and efficient judicial system as a matter of urgency, and adopt without delay the proposed law on the status of judges and prosecutors and the law on the organization and functioning of the courts. The Employer members regretted that the Government was silent with respect to observations about violations of trade union rights, including allegations of serious acts of violence and harassment of trade union members, and requested the Government to provide its views on this matter. They also urged the Government to intensify its efforts, in full consultation with the social partners and with ILO assistance, to ensure that the final draft legislation on freedom of association and trade unions would be in full conformity with the Convention. The Employer members insisted that the Government had to move forward and build on the measures it had taken in order to ensure progress both in law and in practice.

The Worker member of Cambodia referred, first, to the use of short-term or fixed-duration contracts (FDCs), and stated that almost 60 per cent of employers used subcontractors and short-term contracts to avoid the establishment of trade unions in their enterprises, thereby undermining the workers’ rights to freedom of association and collective bargaining. Moreover, short-term contract workers often enjoyed less favourable working conditions, such as lower wages and limited social security benefits. With respect to the assassination of union leaders, the speaker recalled that the actual perpetrators of the murder of Chea Vichea, Ros Sovanareth and Hy Vuthy in 2004 had still not been identified. In another incident, Governor Chhouk Bandith, who shot and seriously injured three striking women workers in February 2012, had not been prosecuted due to the reluctance of the judicial authorities to properly investigate the case. Effective measures were therefore needed to investigate the murders, prosecute the perpetrators to the fullest extent of the law and ensure that justice was done. The speaker referred also to the violence and threats against union leaders and activists, as it happened regularly that persons were hired to attack leaders and members of independent unions. In 2013, there was such a criminal attack on leaders of the Coalition of Cambodian Apparel Workers’ Democratic Union (CCAWDU). In a related development, the number of dismissed union leaders had increased from 40 in 2010 to 45 in 2011 and 116 in 2012. Another matter of concern was the registration of trade unions as all unions wishing to register with the Ministry of Labour had to first give notice to the company while the Ministry of Labour often delayed the provision of the registration certificate, thus preventing the union from functioning properly. On the other hand, political parties and employers occasionally sought to establish unions that could not be regarded as independent, and thereby violating Article 3 of the Convention. As regards the draft Trade Union Law, improvements were necessary as the draft legislation did not cover workers from the public sector (civil servants, teachers, police, air and maritime transportation workers, judges) and domestic workers. The speaker also raised the issue of poor occupational safety and health standards, including insufficient ventilation and unsafe working conditions often resulting in tragic accidents and loss of life.

The Employer member of Cambodia stated that the freedom of association and right to organize was extremely well practised in Cambodia and refuted the reference in the Committee of Experts’ report to a “persistent climate of violence and intimidation towards union members” as being entirely false. Freedom of association was enshrined in article 36 of the Constitution and sections 266–278 of Chapter 11 of the Labour Law. Furthermore, the Labour Law did not require a minimum number of members for one union to be established, therefore one enterprise might have more than one union, sometimes as many as ten unions. Recalling the Committee’s discussion in 2011, she noted that despite the challenging economic environment, progress continued and multiple priorities were being addressed from labour law review to dealing with the increasing number of strikes, establishing commercial arbitration centres, extending social security programmes, diversifying economic strategy, focusing on employment policy and promoting the operation of the new anti-corruption unit. In the speaker’s view, trade unions were not only free but flourishing in Cambodia with 2,765 unions and 76 trade union federations registered in 2012, or a 60 and 90 per cent increase respectively compared to 2011 figures. With regard to strike statistics in the garment sector, the speaker indicated that, in 2012, strikes increased by 255 per cent compared to 2011, while in the period from January to March 2013, there was a 25 per cent increase in strikes compared to the same period in 2012. From an employer’s point of view, the real challenge was the multiplicity of unions and the violent character of demonstrations, signs of a young industrial relations environment and a young union movement that needed maturity, consolidation and more cohesiveness. In relation to the Government’s reporting obligations, the speaker welcomed the establishment of the new inter-ministerial working group bringing together relevant ministries involved in reporting, which would greatly assist in collecting and transmitting information in a timely manner. ILO assistance with building the capacity of the abovementioned group would help the bodies represented in that group to better discharge their responsibilities. With respect to the allegations concerning FDCs, the speaker expressed the view that issues around employment contracts were being taken out of context to push a freedom of association agenda. Both employers and unions agreed that it was necessary to look at the changing economic environment and the challenges of FDCs without blowing this question out of proportion and creating a bad profile for Cambodia’s investment environment. Concerning the forthcoming adoption of the draft Trade Union Law, the speaker stated that the new legislation was initiated and drafted through a truly tripartite process and therefore was not a matter of serious violation of the Convention to be deliberated in this Committee. Using the draft Trade Union Law as a tool for suggesting that there was no freedom of association in Cambodia risked undermining this genuinely tripartite and ground-breaking legislative development. With respect to the deaths of union members, she recognized the seriousness of the matter but hoped that due process would be followed in investigating and delivering justice. Recognizing the challenges that lay ahead, the speaker expressed the hope that the ILO would continue to support the social partners in Cambodia in their endeavours for further strengthening industrial relations systems and mechanisms.

An observer representing Education International (EI) agreed with the Committee of Experts’ previous comments that the draft Trade Union Law did not comply with Convention No. 87 or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). Recalling this Committee’s conclusion in 2011 that the Government should intensify its efforts, in full consultation with the social partners and with the assistance of the ILO, the speaker regretted that the final draft Trade Union Law was moving nowhere fast. Although the draft law, which was communicated in 2011, had addressed some of the Committee of Experts’ observations, it was unclear how it might have been modified since then. A critical issue remained the continued exclusion of civil servants, including teachers, from the scope of the draft union law. The Government had again refused to register the Cambodian Confederation of Unions (CCU) as a union confederation because most of their members were teachers, and this illustrated the Government’s failure to abide by the Convention. Unions in the public sector were still denied union rights and had to operate under the Law on Associations and Non-Governmental Organizations, which was also problematic. ILO technical assistance had been provided, yet the Government did not have the will to move forward. The speaker called upon the Government to again take up the draft Trade Union Law, ensure that it complied with international labour standards, including coverage of civil servants, and adopt it immediately.

The Worker member of Indonesia referred to the dramatic rise in the use of FDCs, particularly in the garment industry, which had created substantial employment insecurity, damaged industrial relations, contributed to the increase in plant-level strikes since 2005, and undermined the power of existing trade unions. In most cases, the duration of FDCs was less than three months, and workers feared that their contracts might not be renewed if they participated in union activities or became union members. The Government’s strategy to compete in global markets by using FDC workers and excessive types of precarious work would only result in economic and political vulnerability. Many garment factories were now entirely composed of a workforce with repeatedly renewed short-term FDCs, which, according to the speaker, violated labour law, in particular section 67 of the Labour Law, 1997, limiting the maximum period for an individual labour contract to two years. The Arbitration Council had ruled that this provision imposed a two-year cap on FDC renewals, but the garment manufacturers ignored the ruling. In practice, the shift from undetermined-duration contracts (UDCs) to FDCs undermined freedom of association and collective bargaining. Short-term contracts also provided insufficient time to organize a union or to identify and develop trade union leaders, and this had a serious impact on the efficacy of leadership and the ability of the union to effect change in the workplace. Further, the labour law required union leaders to have one year’s work experience in the factory, which was hard to accrue under FDCs. Many garment factories had converted most, if not all, of their UDCs to FDCs through a variety of tactics including fake factory shutdowns whereby the factory would reopen immediately under a different name and would “rehire” the workforce under FDCs.

The Worker member of Sweden, speaking on behalf of the Worker members of other Nordic trade unions, stated that anti-union discrimination in Cambodia continued to be a serious problem and workers who were fired for their union activity rarely had access to effective remedies. To date, the Arbitration Council remained the only mechanism for the resolution of labour disputes in the absence of a labour court. The Council addressed disputes in a transparent and balanced manner but its decisions were not binding while its continued existence was compromised due to limited funding. There were many examples where employers engaged in anti-union discrimination and simply disregarded the Council’s decisions with impunity. Hence, the Cambodian unions and workers needed an effective remedy against anti-union discrimination. For all its merit, the Arbitration Council was routinely ignored, leaving workers to have to suffer lengthy and expensive legal proceedings or to take to the streets with the hope of defending their rights.

The Worker member of the Philippines stated that freedom of association could only be effectively exercised in a climate free from violence, pressure or threats of any kind against trade union members and leaders, which was not the case in Cambodia. The speaker gave a detailed account of two cases that highlighted the conditions of intimidation, harassment and violence that workers were facing in Cambodia. In the first case, on 20 February 2012, Governor Chhouk Bandith shot and seriously wounded a group of striking workers. He was charged in April 2012 with “unintentional injury” despite overwhelming evidence from over two dozen witness testimonies clearly pointing to an intentional act. The case had been reopened but the victims, unions and human rights organizations were deeply sceptical about the prospects for a fair investigation. The second case involved two individuals, Born Samnang and Sok Sam Oeun, who were convicted in 2005 for the murder of trade union leader Chea Vichea, then president of Cambodia’s Free Trade Union (FTU). Despite concerns about lack of due process and lack of evidence and an order for a retrial by the Supreme Court, the Appeals Court had upheld the original verdict. The Cambodian authorities needed to initiate a thorough, independent and impartial investigation into those cases. Since Chea Vichea’s death, another two FTU activists had been murdered in Phnom Penh, adding to the long series of unjustifiable acts against civil liberties and trade union rights.

The Government representative expressed gratitude for the comments made by the Employer and Worker members reflecting the efforts made by the Government in the implementation of the provisions of Cambodian legislation in line with the Convention. In order to encourage freedom of association, the Government provided all workers with the opportunity to freely organize and exercise their rights. To date, there were 12 union chambers, 76 union federations and 2,765 trade unions at the enterprise level in Cambodia. In 2012 alone, 74 collective bargaining agreements had been registered with the Ministry of Labour and Vocational Training. He further indicated that trade unions had played a crucial role in the drafting of national legislation and in various discussions on labour issues. Trade union representatives had been included in a committee established on 6 June 2013, which was entrusted with the mandate of conducting the coordination and drafting of Cambodia’s Employment Policy and responding to questions raised by the ILO. The Government representative expressed regret about some of the comments made, which did not reflect the real situation in Cambodia and did not recognize the efforts undertaken to pursue the effective implementation of the provisions of Cambodian labour law in compliance with the Convention. He stressed that the Government had continued to respond to the needs of employers and workers and to the changing industrial environment. Lastly, despite having made significant progress over the years, the Government was aware of the need to continue to develop national laws and regulations and to build on an already solid foundation of social dialogue.

The Worker members stated that, in order to redress the deficiencies that had been highlighted in terms of freedom of association and protection of trade union rights, the Government should, without delay: (i) adopt, before the end of 2013, a law on trade unions that was in accordance with the Convention and that covered all private and public sector workers, regardless of their contract type (permanent, temporary, part-time or full-time), in consultation with the representative organizations of workers and employers and with technical assistance from the ILO; (ii) ensure that the perpetrators of acts of violence against trade unionists and workers were prosecuted and punished by the courts promptly and transparently; (iii) convene a tripartite committee to reach agreement on temporary contracts within six months; and (iv) ensure ongoing funding for the Arbitration Council and authorize it to take binding decisions.

The Employer members expressed their wish to see the comments they had made at the opening of this case with regard to the deficiencies in government action, reflected in the Committee’s conclusions. They believed that the case could be summarized in four broad areas that required the Government’s immediate action: the silence of the Government in respect of the situation of freedom of association; the independence and effectiveness of the judicial system; the adoption of the Anti-Corruption Law together with its five-year strategic plan as well as the establishment of an anti-corruption unit; and the engagement of the social partners. The Employer members encouraged the Government to adopt a law dealing with the issue of freedom of association of trade unions and to ensure that violence against workers was not permitted. They urged the Government to guarantee the independence and effectiveness of the judicial system, including by focusing on capacity-building measures and the institution of safeguards against corruption. In that regard, the Employer members also urged the Government to adopt without delay the proposed law on the status of judges and prosecutors and the law on the organization and functioning of the courts; and to take measures in order to ensure their full implementation. They requested the Government to provide information on the progress made in this respect and in particular with regard to any measures taken to establish labour courts. Furthermore, they encouraged the Government to provide information on the mandate of the anti-corruption institution and its activities together with a copy of the law, the strategic plan and any other relevant document. The Employer members indicated that they were encouraged by some of the measures taken, for example the Government’s consultation of the social partners with respect to the draft Trade Union Law; however, they noted that it was important that the Government continue to engage the social partners in its efforts to achieve compliance both in law and practice with the Convention. The Employer members expressed the hope that they would be able to note progress in each of the aforementioned four categories.

Conclusions

The Committee took note of the statement made by the Government representative, as well as the discussion that followed.

The Committee noted that the grave issues in this case concerned a climate of impunity in the country and seriously flawed judicial processes with respect to the trials of the presumed authors of the assassinations of three trade union leaders, as well as the need to ensure an independent and effective functioning of the judiciary. Other matters concerned long-standing discrepancies between the legislation and the practice, and the Convention.

The Committee took note of the information provided by the Government representative concerning the establishment of a coordinating committee to coordinate all relevant ministries to respond to the questions relating to the assassinations of trade union members, as well as a permanent committee on employment policy, also charged with responding to questions raised by the ILO. The Government representative also referred to the elaboration of a draft trade union law with the technical assistance provided by the ILO, as well as to the intention of drafting a labour court law.

The Committee deplored the fact that, despite the remand of the Chea Vichea case to the trial court, full, independent and impartial investigations had not been carried out into his assassination and the previously convicted persons had been returned to prison without any new evidence being produced. The Committee further noted with concern the allegations of continuing violence, threats and intimidation suffered by trade union leaders and members. Recalling that the freedom of association rights of workers and employers could only be exercised in a climate free from violence, pressure and threats of any kind, it urged the Government to take the necessary measures to bring an end to impunity in relation to violent acts against trade unionists and requested it once again to institute independent investigations so as to ensure that the perpetrators and the instigators of these heinous crimes are brought to justice.

The Committee noted the concerns raised with respect to the judicial system by the Committee of Experts. It recalled its previous recommendation urging the Government to adopt without delay the proposed law on the status of judges and prosecutors and the law on the organization and functioning of the courts and ensure their full implementation, and expected that the Government would be in a position to report on the progress made in this regard without delay.

The Committee further observed that the legislative reform process was still under way and once again called on the Government to intensify its efforts, in full consultation with the social partners and with the assistance of the ILO, to ensure the rapid adoption of the draft Trade Union Law by the end of 2013 so as to more fully guarantee the rights under the Convention. It also requested the Government to take further measures to ensure freedom of association rights to public service workers and all types of contract workers. It specifically requested the Government to provide the Committee of Experts with the texts of the Anti-Corruption Law and its strategic plan, and expected that the necessary resources would be provided for their effective implementation. Adequate resources should also be allocated for the proper functioning of an independent judiciary. It also requested the Government to transmit to the Committee of Experts all other draft texts referred to so that it would be in a position to comment as to their conformity with the Convention and expected that it would be in a position to observe concrete progress in this regard in the near future.

Individual Case (CAS) - Discussion: 2011, Publication: 100th ILC session (2011)

A Government representative stated that the Government, in phase two of the “Rectangular Strategy” for Growth, Employment, Equity and Efficiency, had defined “Private Sector Development and Employment” as a strategic driving force for job creation, the improvement of working conditions and economic growth. The union movement had grown exponentially in tandem with the growth of the garment, hotel and tourism industry. The Government was strongly committed to address the objective of efficiency and protection of rights and the freedom and dignity of the people within the context of the Strategy. Legal and judicial reform formed a core component of the Strategy, which included the strengthening of the judicial capacity relating to fundamental labour rights, including freedom of association and collective bargaining, as well as training on industrial relations. With regard to the investigation of the three cases relating to the murders of former trade union leaders, the Government stated that no updated information existed since the release on bail of the two suspects by the Supreme Court. The Government would provide the ILO with information in the event of any new developments. In the context of the immature industrial relations in the country and the growth of the garment industry, the number of trade unions and labour disputes, the Government with the assistance of the ILO, had established the Council of Arbitration through which labour disputes were resolved peacefully. As a result, the number of strikes had been halved during the last three years. The Government was also actively preparing a draft Union Law, which was expected to guarantee the right of workers to organize and bargain collectively. The draft law would also promote collective bargaining through harmonizing the rules for certifying unions with the most representative status and minority unions, creating a legal framework for collective bargaining agreements and specifying unfair labour practices of both employers and workers. The speaker hoped that the Committee would continue to cooperate with the Government to further improve industrial relations and the application of freedom of association through institutional capacity building.

The Worker members emphasized that there was a general climate of anti-trade union activity in Cambodia. It included anti-trade union harassment, intimidation and dismissals of trade unionists as well as discriminatory measures against free trade unions. The report of the Committee of Experts also referred to police violence, cases of assault and murders of trade unionists. The report mentioned the names of trade unionists for whose murder the perpetrators had never been punished. The Committee of Experts had requested precise information from the Government and that had not been sent so far. In general, steps had to be taken to ensure the independence and effectiveness of the judicial system. That point had been taken up, not only by the Committee of Experts, but also by the United Nations (UN) Special Rapporteur on the situation of human rights in Cambodia. Furthermore, the Government had announced the forthcoming vote on a labour court law and a trade union law, the latter having been sent to the ILO and in connection with which the Government was receiving technical assistance from the Office. With regard to the labour court, Cambodia had an Arbitration Council which derived from the labour legislation. The Worker members, while not denying the usefulness of such a body, observed nevertheless that it could not replace a genuine judicial body. Moreover, they had noted that the employers, particularly in cases of anti-union discrimination, often decided not to implement arbitration awards. With regard to the draft trade union law, it was essential that it was discussed with all the social partners. But according to the information in the workers’ possession, such dialogue was occurring only between the Government and the private sector employers, the workers only having observer status. It also appeared that the law presented a number of problems of conformity with the Convention. For that reason, it was necessary to consult the trade unions before continuing with the draft law.

The Employer members expressed their disappointment about the statement by the Government, which had shown that no significant action had been taken and which had provided no new information. They felt that they could have the same discussion as last year. They indicated that this was the fifth time this serious case was discussed, which involved the violation of civil liberties, assassinations of trade unionists, death threats, a climate of impunity, repression and lack of trade union law. It was a double-footnoted case last year. After the observations of the Committee of Experts in 2007 and 2008 and the direct contact mission in 2008, the Law on Peaceful Demonstration had been adopted in 2009, but this law was in breach of the Convention, which had to be rectified. They regretted that there had been little progress made in the field of freedom of association and the right to organize. The International Trade Union Confederation (ITUC) had reported on acts of violence and harassment against trade unionists. The Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC) continued to struggle to be recognized by the Government as a valid social partner. Investigations on the murder of trade union leaders were insufficient. Functional labour courts were not yet established. The UN Special Rapporteur on the human rights situation in Cambodia had recommended that measures be taken to enhance the independence and effectiveness of the judiciary. In summary, this case was “dead in the water” and progress could not be seriously discussed. They emphasized, therefore, that technical assistance had to be provided to the Government.

The Employer member of Cambodia expressed the view that progress achieved since the ratification of the Convention in 1999 was remarkable in many ways. Based on the register of the Ministry of Labour and Vocational Training, 1,725 unions, 41 federations of trade unions, seven confederations of trade unions covering all industries and a National Union Alliance of Cambodia had been registered in 2010. Some 80 to 90 per cent of trade unions belonged to the garment industry, which meant that approximately 1,380 to 1,553 unions existed in an industry with approximately 300 factories. This indicated that workers were free to organize. In addition, the Labour Law allowed multiple unions in one enterprise. Many workers belonged to multiple unions at an enterprise. Employers thus faced practical problems with these unions, including the problem of double counting of members, and competition and fighting among unions. The employers had to negotiate with several of these unions at a time. It was widely acknowledged by all social partners that the union movement was disorganized and fragmented. She indicated that the employers sought to cooperate with a most representative union and encouraged better structures and representativeness of unions, in order to ensure constructive and meaningful dialogue. She hoped that this would become a reality with the adoption of the draft Trade Union Law. She mentioned that article 36, paragraphs 5 and 6, of the Constitution guaranteed the citizens the right to form and join unions, and that sections 266 to 278 of the Labour Law provided for freedom of association. She further mentioned several tripartite mechanisms that existed in the country. She referred to the eight public–private tripartite working groups, which had not been mentioned previously by the supervisory mechanism. The eighth working group dealt with labour and social affairs and had prepared the draft Trade Union Law. She also mentioned that the social partners were represented in the governing structures of the ILO Better Work programmes, the Labour Arbitration Council, the National Social Security Fund and the Employer Youth Employment Programme. She reiterated that the principle of freedom of association was practiced in Cambodia. She regretted the murders of trade union leaders.

The Worker member of Indonesia deplored the continuing anti-union discrimination practices in Cambodia. In 2010, as a direct result of trade union activities, over 1,000 workers had been dismissed from their jobs, 35 workers had been injured and 11 had been arrested. Workers were threatened by employers or black listed as a result of union activities. In September 2010, 817 workers had been suspended or dismissed, 10 workers had been arrested and 28 workers had been injured for taking part in a national strike in which hundreds of thousands of workers had asked for an increase in minimum wage. Paho Sak, the president of FTUWKC, had also been violently attacked. The speaker was concerned with the arrest and detention of Sous Chanta, a trade union leader of the United Apparel Garment Factory, as the arrest seemed to have been fabricated to punish him for his trade union activities. These were just some examples of anti-union violence and intimidation that had taken place since the Committee had last considered this case. In order to prevent workers from exercising their right to organize, employers made recourse to numerous tactics, including the increasing use of short term contracts, subcontracting, outsourcing and yellow unions. The speaker called upon the Government to ensure that workers could freely associate, workers’ rights were respected and perpetrators of anti-union violence were held accountable.

The Worker member of Finland expressed deep concern over the continuing failure of the Government to bring its law and practice in compliance with the Convention. Notwithstanding the repeated calls by the ILO supervisory bodies, the Government after seven years had still not exonerated those wrongly convicted for the murders of the trade union leaders and had not ensured impartial investigations to bring the real perpetrators to justice. A culture of impunity continued to prevail and those who instigated violence against trade unionists had little to fear from the authorities. Employers often appealed against the decisions of the Arbitration Council to the courts or simply ignored them. Workers who sought the enforcement of their rights were forced to take legal action in civil or criminal courts, which was costly and lengthy. The judicial system in the country was corrupt, and lacked capacity and impartiality. It was critical for the Government to take action in this area and she, therefore, urged the Government to adopt and fully implement its proposed Law on the Status of Judges and Prosecutors and the Law on the Organisation and Functioning of the Courts. While underlining the seriousness of the case, the speaker deplored the lack of commitment of the Government and urged it to take concrete steps to ensure genuine freedom of association for Cambodian workers.

An observer representing Education International said that there was no teachers’ union in Cambodia, as no public employee enjoyed freedom of association in the country. The Labour Law of 1997 did not authorize them to establish a union or to have access to collective bargaining procedures. Indeed, public officials were governed by a law of 1994 which provided that all aspects governing the industrial relations of public officials were to be determined by law, without negotiation. In that respect, the Committee on Freedom of Association had emphasized the incompatibility of the Common Statute of Civil Servants with the Convention and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). Despite the recommendations made by the Committee on Freedom of Association in 2004, no amendment had been made. She indicated that the Cambodian Independent Teachers Association (CITA) and its members were the victims of discrimination and harassment. In 2009, the CITA had submitted a new complaint relating to intimidatory measures by members of the authorities and the police forces. High-level government officials had used their position to bring pressure to bear on teachers to dissuade them from joining the CITA or to leave the association. As they were appointed by the Government, the directors of educational establishments and authorities were effectively obliged to show allegiance to the regime. In 2010, CITA had submitted to the Ministry 34 individual cases of teachers who had suffered discrimination because of their trade union activities. The cases related to prejudice in relation to promotion, wage cuts, transfers or dismissals. Only 14 of the cases had been resolved. She concluded that, despite the reiterated calls made to the Government of Cambodia to amend the Common Statute of Civil Servants so as to guarantee in full the right to organize and to collective bargaining of public officials, the workers feared that the current legislative amendments were not going in the right direction, as emphasized by other Worker members.

The Worker member of the United States indicated that while the Government had engaged in consultations with trade unions regarding the adoption of a new Trade Union Law, he was deeply concerned about the quality of those consultations and their outcome. The current draft law reflected few of the recommendations made by the trade unions, but largely reflected the priorities of garment sector employers. This draft law had to be substantially amended prior to its eventual adoption, otherwise, it would only perpetuate the current dysfunction. Amongst other things, this draft law continued the previous law’s exclusion of civil servants, police, air and maritime workers, judges and domestic workers; it imposed qualifications for trade union leadership which were inconsistent with the principles of freedom of association; it allowed the administrative authorities to suspend or cancel a trade union’s registration; and it gave sole bargaining rights to a union that represented far less than the majority of workers in the workplace. He urged the Government to take into account the views of the trade unions on all these issues.

The Government representative clarified that the cases concerning the former trade union leaders were not yet finalized, as all necessary information was still being collected. He assured that justice would be served soon. He reiterated the willingness of the Government to improve freedom of association and collective bargaining and pledged that the situation would improve with the promulgation of the draft Trade Union Law. False information had been used by the ITUC, since the alleged black list referred to did not exist. The Government would take into account the comments and recommendations made during the discussion of the case.

The Employer members argued that there was a serious problem of understanding within the Committee as to the standing of the case, which was illustrated by the significant disconnect between the statements made by the Government and the employer member of Cambodia. The ILO had to assist the Government to provide the Committee of Experts with a comprehensive report of the situation in law and practice, which also had to include a copy of the draft trade union law. This would enable the Committee of Experts to clearly delineate the legal situation as regards the right to freedom of association and collective bargaining and to make observations on the draft law. The Employer members insisted that the case had to move forward and, for this purpose, ground work had to be done by the Government in cooperation with the ILO in order for the Conference Committee to engage in a real dialogue with the Government next year.

The Worker members emphasized that they could not understand why the Government had not acted or taken little action to resolve situations involving serious violations of freedom of association in Cambodia. The Government needed to take all the necessary measures as soon as possible to bring to an end violations of the rights of workers engaged in a trade union organization. With respect to the judicial authority, they observed that the Government still had much more to do, especially in terms of the legislative amendments to guarantee the independence of the judiciary. The draft Trade Union Law was not in conformity with the Convention. Any modification of Cambodian legislation needed to be made in consultation with the trade unions. In conclusion, they called on the Government to request ILO technical assistance.

Conclusions

The Committee took note of the statement made by the Government representative, as well as the discussion that followed. The Committee recalled that the Committee of Experts had referred to the climate of impunity in the country within the context of the assassination of three trade union leaders, concerns about the independent and effective functioning of the judiciary, as well as certain discrepancies between the legislation and the practice, and the Convention.

The Committee took note of the information provided by the Government representative concerning the growth of the trade union movement and the evolution of freedom of association in the country. He referred to the “Rectangular Strategy” adopted by the Government to ensure growth, employment, equity and efficiency. This included plans for legal and judicial reform and training of the judiciary in the fundamental rights of organizing and collective bargaining. The Government welcomes the technical assistance of the Office in this regard, as well as with respect to the preparation of a draft trade union law aimed at guaranteeing the right to organize and promoting collective bargaining.

The Committee deplored the fact that full, independent and impartial investigations had still not been carried out into the assassination of the trade unionists Chea Vichea, Ros Sovannareth and Hy Vuthy. It further noted with concern the allegations of threats and intimidation suffered by trade union leaders and members. Recalling that the freedom of association rights of workers and employers could only be exercised in a climate free from violence, pressure and threats of any kind, it urged the Government to take the necessary measures to bring an end to impunity in relation to such violent acts against trade unionists and to ensure that the perpetrators and the instigators of these heinous crimes are brought to justice.

The Committee noted the concerns raised with respect to the judicial system by the Committee of Experts and the 2010 report of the UN Special Rapporteur on the situation of human rights in Cambodia. It urged the Government to adopt without delay the proposed law on the status of judges and prosecutors and the law on the organization and functioning of the courts and ensure their full implementation. It requested the Government to provide information on the progress made in this regard, as well as in respect of the creation of labour courts.

The Committee observed that a legislative reform process was under way and considered that the Government should intensify its efforts, in full consultation with the social partners and with the assistance of the ILO, to ensure that the final draft legislation would be fully in conformity with the Convention. In particular, the Committee trusted that the new legislation would ensure that civil servants, teachers, air and maritime transport workers, judges and domestic workers are fully guaranteed the rights under the Convention. It requested the Government to transmit the draft texts to the Committee of Experts so that it would be in a position to comment as to their conformity with the Convention.

The Committee requested the Government to provide a full report on all measures taken in this regard, and provide data by industry on the number of unions, affiliation, number of collective agreements and their coverage, to the Committee of Experts at its meeting this year. The Committee expressed the firm hope that it would be in a position to see significant progress with respect to all of these matters at its next session.

Individual Case (CAS) - Discussion: 2010, Publication: 99th ILC session (2010)

A Government representative stated that the matters raised were considered as key in the ongoing process of development, in which the implementation of the “Rectangular Strategy” for Growth, Employment, Equity and Efficiency played an important role. Since 1996 the trade union movement had grown in tandem with the growth of the garment, hotel and tourism industry. The Government had made great efforts to address the issues raised by the supervisory bodies relating to respect for freedom of association and collective bargaining, in line with the policies and objectives of the Rectangular Strategy. The Government strongly believed in the establishment of a legal and institutional basis for development towards the promotion of individual rights and dignity, private ownership and free market mechanisms. Based on this vision, the Government had enacted numerous laws and made efforts to enhance the legal and judicial system, as well as good governance. The legal and judicial reform formed a core part of the Rectangular Strategy. The Government was aware of the need to enhance the capacity of the judiciary to ensure and protect fundamental labour rights, including the right to organize and bargain collectively, as well as the need to provide training on industrial relations. To this end, his Government welcomed the ILO’s technical assistance.

With regard to the investigation of the three cases concerning trade union leaders, some progress had been made. In the case of Chea Vichea, the two persons who had been convicted earlier had been released on bail after the Supreme Court found inadequacies in the criminal procedure, particularly as regards the evidence. In the case of Ros Sovannareth, the appeal against the conviction of Thach Saveth by the Appeal Court in April 2009 was still pending before the Supreme Court. The case of Hy Vuthy was still being investigated. The Government was making efforts to address these cases in line with its policy of ensuring accountability through the overall reform of the legal system. In addition, many other cases were still in the process of being investigated and the Government also suspected that at least some of the cases (for example, Case No. 2318 of the Committee on Freedom of Association) had been brought as a result of anti-union rivalry and ordinary crime.

The efforts of the Government had to be considered in the context of the growing development of the garment industry, the considerable growth of trade unions, as well as the immature state of industrial relations and labour disputes. The Arbitration Council, which had been established with the assistance of the ILO, had settled labour disputes peacefully and, due to its existence, the number of strikes had been reduced by about half over the past three years. In cooperation with the ILO, the Government was working on a draft Trade Union Law to be adopted by Parliament in 2011. The Government expected the Law to guarantee the right of workers and employers to organize and bargain collectively through the streamlining of rules for the certification of the union with the most representative status and the minority union, the creation of a legal framework for collective bargaining agreements and the definition of unfair labour practices by employers and workers. In view of the evolving progress, the Government was considering the creation of a labour court in accordance with international standards.

In the context of the public administration reform policy, and as part of the Rectangular Strategy, the Government was considering guaranteeing the right of freedom of association and collective bargaining to public personnel. Public servants had already benefited from an increase in their monthly salary and the Government was committed to continuing efforts to increase the base salary. In conclusion, he emphasized the cooperation of his Government to enhance the living standards of workers and hoped that the ILO would continue to provide technical assistance to strengthen capacity building in Cambodia, particularly in the field of freedom of association and industrial relations.

The Employer members noted that this was a “double-footnoted” case concerning one of the fundamental Conventions. They observed that the Government had provided information on various points, but that it was only partially related to the points raised in the comments of the Committee of Experts. This was the second occasion on which the case had been discussed since 2007 and the Committee of Experts had still not been provided with sufficient information. They recalled that the main issues in this case concerned the assassination of trade unionists, death threats, the climate of impunity, the allegation of irregularities in trials, corruption, and systematic violence and repression. However, the Government had not specifically commented on these points. They referred to the conclusions of the direct contacts mission that had visited Cambodia in April 2008, mentioned in the 2009 observation of the Committee of Experts, which had reported the lack of capacity and independence of the judiciary, the procedural irregularities in the trial for the murder of trade unionists, and the absence of Government action for review of the outstanding cases.

In the 2009 direct request, the Committee of Experts had, in relation to Article 2 of the Convention, called on the Government to take appropriate measures to ensure that judges and temporarily and permanently appointed officials in the public service enjoyed the right to establish and join organizations. They were of the opinion that the Government needed to provide a comprehensive report on these points, as it had not addressed them in its statement to the Conference Committee. With respect to the right of workers to establish organizations without previous authorization, the Committee of Experts had requested the Government to indicate whether workers’ and employers’ organizations could be refused registration and the permissible grounds for such refusal. This was a normal part of the supervisory process. Regarding Article 3 of the Convention, the Committee of Experts had requested the amendment of section 269(3) of the Labour Law, which disqualified persons convicted of any crime from holding office in trade unions, and section 269(4) of the Law, which required that trade union members had to be engaged in the profession for at least one year before being elected to trade union office. They called on the Government to respond to these comments, as it had not yet done so. With respect to the right to strike, they indicated that the Government should address the issue in light of its national circumstances. Concerning the issue of affiliation with international organizations, they recalled that the Government had indicated that there were no legal obstacles for unions of professional organizations to affiliate with international organizations. If the practice was in place, it was in effect the policy.

Finally, they were of the view that this was a serious case because the Government was not fulfilling its constitutional obligations to report to the ILO and to respond to the requests of the Committee of Experts. The Government was also failing to discharge the international obligation that it had taken on voluntarily to implement the Convention in law and practice. This needed to be remedied as an urgent matter.

The Worker members stressed that the non-respect for Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), was aggravated by the continuous lack of the submission of reports by the Government. In the case of Convention No. 87, they recalled that the observations concerned the assassination of trade union leaders in 2004 and the legal consequences of these murders, namely the conviction of two innocent men. More generally, they referred to a climate of violence and intimidation towards union members, including death threats, suppression of the right to strike, anti-trade union discrimination, false accusations and pay docking. The Independent Workers Union of the Kingdom of Cambodia was the systematic target of repression. All of those acts remained unpunished, primarily because of lapses in the Cambodian legislation. There was, in fact, no means for resolving conflicts because the tribunals provided for by law had not yet been established, and intimidation and corruption replaced any legal means of conflict resolution. In addition, recognition of the most representative trade unions could be refused by the Ministry of Labour for arbitrary reasons. The right to collective bargaining was not recognized for judges, teachers and civil servants. Furthermore, the Cambodian Independent Teachers’ Association (CITA) was not recognized as a trade union. The Worker members recalled that the Government had accepted a direct contacts mission in April 2008. At the end of 2008, the Supreme Court had ordered the release of two persons accused of the murder of a trade union leader. The Government had done nothing to ensure respect for trade union rights, guarantee the independence of the legal system, establish labour tribunals or revise the law on trade unions. The Worker members noted the announcement by the Government of a new draft law on trade unions, and they expressed their strong hope that the new law would be in full compliance with the principles contained in Conventions Nos 87 and 98.

The Worker member of Cambodia referred, first, to the murder of the three trade union leaders, Chea Vichea, Ros Sovannareth and Hy Vuthy, for which the murderers had not yet been found. He called on the ILO to urge the Government to take decisive action to investigate the three cases as soon as possible and to ensure that the murderers were found and brought to justice. He also called upon the Government to stop threats, and violence against and killings of trade union leaders and activists. Second, he indicated that since the global financial crisis of 2007, there had been numerous cases of violence against trade unionists and of dismissals of trade union leaders. He claimed that many employers, approximately 60 per cent, used subcontractors and short-term contracts to avoid unions in their company, thereby destroying freedom of association. Under short-term contracts, the rights of the staff were curtailed, especially the freedom to join a union and the right to maternity leave, years of service and annual leave. He added that employers had dismissed 230 union leaders since early 2009 and threatened that if they continued their union activities, they would dismiss workers or take them to court for incitement of violence, which was a criminal offence in Cambodia. He referred to numerous cases of dismissed union activists, including 58 workers of the Naga company, 169 workers in 14 garment factories and three union leaders in the TTP Company, and emphasized that union leaders always lost their cases in Cambodian courts. He called on the ILO to appeal to the Government to respect and apply the legislation and ILO Conventions, to ensure that employers complied with them, stopped dismissals, violence and threats, and reinstated all workers involved in trade union activities. Finally, he indicated that trade unions did not have equal rights to participate in the Eighth Working Group, a body for social dialogue. He called for full rights to be given to trade unions in this body so that the Eighth Working Group was truly tripartite.

The Employer member of Cambodia stated that freedom of association was strongly promoted by the Government of Cambodia. The Cambodian employers welcomed the right to freedom of association and collective bargaining. A high number of trade unions existed in Cambodia, mostly in the garment industry. Cambodian labour law allowed for multi-enterprise unions, which caused many practical problems for employers. Most garment factories had at least three or more unions and many workers belonged to more than one union at one enterprise. As a result, various demands came from various unions, operations were often disrupted and many strikes took place, which were illegal because the legal procedures had not been followed. He regretted that in Cambodia strikes were often used as a first, instead of a last, resort for dispute settlement. The Cambodian employers welcomed a trade union movement, but one which was consolidated and genuine. The ILO Better Factories Cambodia was an example of a programme in which trade union rights were fully respected. In response to the allegation made by the Worker member of Cambodia that there was no mechanism for the settlement of disputes, he recalled that the Arbitration Council which dealt with freedom of association had already been in existence for five years. The revision of the Trade Union Law was currently being studied by employers and workers and was expected to be passed by Parliament in 2011. With regard to the murder of trade union leaders, he expressed his regret at the loss of human lives, but asserted that employers were not involved, and hoped that justice would be done.

The Worker member of the Philippines expressed his concern over the restrictions on trade unionists in Cambodia. While the 1997 Labour Code provided that workers were free to form and join trade unions, the law, in practice, did not apply to officials working at the local and national levels, judges and teachers, contrary to Conventions Nos 87 and 98. In particular, he emphasized the crucial role of teachers, whose working conditions remained unsatisfactory, with their monthly salaries ranging from US$20 to 40, making it difficult to fulfil their tasks of educating children and young persons who would shape the future of the country. The fact that 10 per cent of Cambodian teachers were organized under the CITA showed that there was an urgent need and a wish to improve their working conditions. The CITA, however, was not recognized as a trade union. Therefore, the Government had to explain the measures taken to remove continued obstruction of the activities of the CITA, as well as of the Cambodian Independent Civil Service Association (CICSA). The Committee on Freedom of Association (CFA) in its 334th Report had already requested the Government to amend the Common Statutes of Civil Servants so as to guarantee the right to collective bargaining of civil servants not engaged in the administration of the State. He therefore requested the Government to use the current process of drafting a trade union law to include relevant provisions ensuring this right.

The Worker member of France emphasized that the Cambodian Government had much to explain. He recalled the latest developments in the three murder cases, which had intimidated the trade union movement in Cambodia and silenced its legitimate leaders. First, there had been no serious investigation to find the murderers of Chea Vichea. The charges against Born Samnang and Sok San Oeun, who had been wrongfully imprisoned for five years, were still pending and no new developments had occurred since the Court of Appeal had sent a list of specific points for the investigation of Chea Vichea’s murder to the Phnom Penh Municipal Court in the autumn of 2009. Second, on 21 February 2009, the Court of Appeal had upheld the 15 year prison sentence of Thach Saveth for the murder of trade union leader Ros Sovannareth in a trial that had been marked by procedural irregularities, which had cast doubt on the conviction. An appeal to the Supreme Court had been lodged, but there was no news as to its status. Third, no investigation had been made into the killing of Hy Vuthy, a union leader of the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC), in 2007. Evidence had disappeared and witnesses had been intimidated. An impartial investigation into these three murders needed to be carried out and the Government should be requested to report on this to the ILO next year. Thach Saveth should be released and the charges against Born Samnang and Sok San Oeun dropped. He urged the Government to finally give an undertaking to the victims and their families that justice would be done and to work towards the establishment of a climate free from fear for genuine trade unionists.

The Worker member of the United States shared the concerns expressed by the previous speakers with regard to the culture of impunity in Cambodia which enabled the intimidation and violent repression of trade unionists to continue. The absence of an effective system to prosecute and convict the intellectual and material authors of such violence and repression needed to be addressed. Cambodian workers were also subject to blacklisting, illegal wage deductions and exclusions from promotion due to their trade union activity. The Labour Ministry rarely took legal action against violators, instead advising workers to go to court, which was costly and ineffective, or to accept a cash settlement. Given their low pay, labour inspectors were especially vulnerable to bribery. The Committee of Experts had called on the Government to solve this judicial and administrative corruption, which had hampered the establishment of truly effective labour courts, employment generation, job security and decent work in general. Efforts to eliminate impunity were therefore not only essential for the protection of trade union rights, but also for the creation of an atmosphere of stability and certainty for employers and foreign investors. At this critical moment, it was important for Cambodia to save its reputation as a source country that was improving its compliance with international labour standards by means of the contributions already made under the ILO’s Better Work Programme. He urged the Government to use ILO technical assistance to ensure that the new law on trade unions was in full compliance with Conventions Nos 87 and 98. In this respect, the new law should overhaul article 269 of the Labour Code, and enable trade unions to freely elect representatives of their own choosing and freely administer their own system of internal governance. The new law should also prohibit the establishment of yellow and employer controlled organizations, such as the Khmer Youth Federation Trade Union, and should guarantee full legal trade union status and collective bargaining for teachers and civil servants.

The Government representative of Cambodia thanked the Employer and Worker members for their contributions to the debate. Despite the challenges his Government was facing, he reiterated that the Government was committed to promoting the rights and dignity of all people, including workers. This objective was also incorporated in the Rectangular Strategy referred to earlier. Impunity was not the policy of the Government and the legal and judicial system was undergoing reform. He regretted the death of the trade union leaders and reiterated the Government’s commitment to bringing those responsible to justice. The reality was that the Government was not only currently engaged in a reform process, but was also dealing with the effects of the economic crisis. Moreover, the international community should acknowledge the progress made by the Government so far.

The Employer members, while appreciating the additional information provided by the Government, indicated that it remained unclear whether its report submitted to the Office contained replies to the requests made by the Committee of Experts and whether the legislation under consideration would fill the gaps identified. In any case, the Committee of Experts would provide its observations on this report at its next session. He suggested that it might be useful for the Government to provide the draft legislation to the Office for its technical advice so that the legislation adopted would fully meet the requirements of Convention No. 87. He indicated that the adoption of a right policy was only the first step and its implementation in practice had to follow.

The Worker members had noted the Government’s intention to give priority to the competitiveness of the Cambodian economy, even at the cost of disregarding the ILO’s fundamental standards. The Worker members insisted therefore on the Government’s obligation to comply with those standards. They called on the Government once and for all to complete the legal proceeding surrounding the killing of trade unionists and, specifically, to release Thach Saveth and drop all charges against Born Samnang and Sok Sam Oeun, and to take all necessary steps to apply Conventions Nos 87 and 98. They requested, specifically, that the Government guarantee judges, teachers and public officials the right to form and join trade unions and to bargain collectively and that, with the technical assistance of the ILO, it finalize the drafting of the new laws on trade unions and labour courts. They appealed to the Government to ensure that there was genuine social dialogue and, above all, that trade unions participated on an equal footing in meetings of the Eighth Working Group on Industrial Relations, where important labour issues were discussed.

Conclusions

The Committee took note of the statement made by the Government representative, as well as the discussion that took place thereafter. The Committee recalled that the Committee of Experts had referred to the climate of impunity in the country within the context of the assassination of three trade union leaders, as well as certain discrepancies between the legislation and the practice, and the Convention.

The Committee took note of the information provided by the Government concerning the efforts made to strengthen the legal and institutional framework in the country, emphasizing legal and judicial reform as a core element of its strategy. The Government also referred to the preparation of a draft trade union law and the consideration being given to the creation of labour courts. The Government highlighted the importance of capacity-building for the country and welcomed ongoing ILO technical assistance in relation to all of these efforts.

The Committee deplored the continued failure on the part of the Government to provide full reports to the Committee of Experts. The Committee observed that the recurrence of reporting difficulties appeared to be the result of serious institutional shortcomings and expected that the necessary technical cooperation would be provided to the Government to ensure that these difficulties would be rapidly overcome. While the Government’s reports have now been received, the Committee must now await their assessment by the Committee of Experts.

The Committee regretted the lack of information relating to the long-awaited independent investigations to be carried out into the assassinations of the trade unionists Chea Vichea, Ros Sovannareth and Hy Vuthy. The Committee, like the Committee of Experts, recalled that the freedom of association rights of workers and employers could only be exercised in a climate free from violence, pressure and threats of any kind. It urged the Government to take the necessary measures to ensure respect for this fundamental principle and bring an end to impunity by taking the necessary steps as a matter of urgency to ensure full and impartial investigations into the murders of the abovementioned Cambodian trade union leaders and to bring, not only the perpetrators, but also the instigators of these heinous crimes to justice. Given the serious flaws observed in the judicial process to date, as already observed by the Supreme Court, it expected that the criminal charges against those earlier convicted for these murders would be immediately dropped and that the Supreme Court would rapidly review the appeal by Thach Saveth and ensure his release.

As regards the legislative discrepancies remaining, the Committee trusted that the reform process would bring the legislation into greater conformity with the Convention and requested the Government to transmit any draft texts to the ILO for an informal opinion in this regard. It expressed the hope that the necessary measures would be taken in the near future to ensure freedom of association rights for teachers, judges and the public service and called upon the Government to ensure full consultation with the social partners concerned with respect to labour law reform and to ensure their full and equal participation in all relevant social dialogue forums.

The Committee requested the Government to provide a full report on all measures taken in this regard to the Committee of Experts at its next meeting in November 2010 and expressed the firm hope that it would be in a position to see significant progress with respect to all of these matters at its next session.

Individual Case (CAS) - Discussion: 2007, Publication: 96th ILC session (2007)

A Government representative stated that freedom of association was assured under sections 266-278 of Chapter 11 of the Cambodian Labour Law, which were themselves in conformity with the provisions of Convention No. 87. As of 2007 there were 1,075 trade unions, freely established and registered in accordance with national laws. Union members exercised their rights freely, and no threats or harassment against trade unionists had ever occurred. The reports of the ILO Better Factories and Labour Dispute Resolution projects indicated that the situation with respect to freedom of association rights had improved dramatically in the garment sector; as a result, many labour disputes were settled in a timely manner and to the satisfaction of the parties concerned.

He stated that on 6 April 2007 the Court of Appeal held a hearing on the murder of Chea Vichea, the former president of the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC), and on 12 April 2007 rendered a verdict upholding the municipal court's August 2005 sentence of 20 years' imprisonment for the defendants, Born Samnang and Sok Sam Oeun. The case had passed through the judicial process, and was therefore beyond the Government's competence. As regards the case concerning Ros Sovannareth, that case was presently under investigation by the competent authority.

He maintained that the Government had emphasized the effective and efficient management of civil servants under the competence of the Education and Interior Ministries, especially with regard to their financial and technical aspects, and that civil service workers' associations fell within the scope of the Labour Law. The above information, he concluded, demonstrated the Government's commitment to upholding the principles of Convention No. 87.

The Employer members regretted that the Government had provided no report on the implementation of Convention No. 87, in spite of the fact that the Committee of Experts had been requesting such information since 2003. This failure to report gave the impression that no effort had been made to implement the Convention's provisions. This amounted to a failure to apply the Convention in law and in practice. Judges and civil servants must be able to establish organizations to defend their interests and to become members. The Experts had also requested an amendment of the provision of the Labour Law, according to which everybody who had been convicted of a crime was barred from being elected to a responsible position in a professional association. The Employer members further remarked that it remained unclear which civil servants were defined as "officials with legislative tasks" and barred from establishing organizations, as well as under which conditions the establishment of an organization of workers or employers could be denied. Additionally, limitations existed on the right of associations of professional organizations to affiliate with international organizations.

Noting the reported problems of applying the Convention in practice, they affirmed that the right of workers' and employers' organizations can only be exercised in a climate free from violence, pressure or threats of any kind against the leaders and members of these organizations. They stated that the examples touched upon infringed not only upon the Convention, but also upon the Constitution of Cambodia, which expressly provided for freedom of association. They concluded by urging the Government to provide full information on the Convention's implementation, as requested by the Committee of Experts for several years running.

The Worker members regretted that the Government had not submitted a report and deemed the statement by the Government representative to be disappointing. It was vital that, at a time when this country was experiencing strong economic growth, particularly thanks to the garment sector, all workers, including those in that sector, should enjoy freedom of association. This, unfortunately, was not the case. The Labour Law did not apply to civil servants or domestic workers. The Cambodian Independent Teachers' Association (CITA) had not been recognized as an independent trade union. It could not bargain collectively on behalf of teachers and was the target of harassment, intimidation and surveillance by local authorities and police. This lack of protection also existed in the informal sector.

Where they were able to organize, workers were confronted with a climate of intimidation and violence. Three years ago, the Chairperson and another member of the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC) were murdered. Two innocent people had been condemned for this crime, while a witness to it, found by the International Trade Union Confederation (ITUC), was afraid of testifying. This year another trade unionist was murdered. There was no lack of proof for acts of harassment and repression systematically carried out by the police against collective action led by the unions, especially the FTUWKC. It was the Government's duty to ensure a climate free of violence, threats or pressure so that employers' and workers' organizations could exercise their rights.

Furthermore, there was no system for conflict resolution, as courts foreseen by the Labour Law to settle litigation between workers and employers had still not been set up. Workers who complained or protested were sometimes brought before civil courts on charges of damages to companies. In most cases, the complaints were withdrawn if the worker resigned or accepted to forego his or her action. Intimidation and corruption had replaced legal procedures in conflict resolution.

There was still a long way to go in order to put an end to the climate of impunity and ensure the essential conditions for the exercise of freedom of association.

The Worker member of France underscored the serious aspect of the International Trade Union Confederation's comments and added his own. In November 2004, the trade union organization to which the speaker belonged, after having met Rong Chlun, the Chairperson of the Cambodian Independent Teachers' Association, communicated its concern to His Majesty the King of Cambodia regarding the mounting pressure and threats to which trade union leaders and members were subjected because of their union activities. Two other union activists - Chea Vichea and Ros Sovannareth - were assassinated in the same year. The facts pointed to violent police action against striking workers through the use of water cannons, aggression, etc. In addition, the imposition of minimum service in all the enterprises mentioned in the direct request of the Committee of Experts further limited the right to strike. These proved well founded as, in October 2005, Rong Chlun and another trade unionist were arrested for criticizing government policy. An arrest warrant was also issued against Chea Mony, Chairperson of the FTUWKC. The speaker could testify to the tense situation for workers exercising their union rights, mainly in the textile and garment sector, which was experiencing the full impact of trade liberalization policies. This tense situation had led to the murder of a trade union official in the Suntex clothing company, Hy Vuthy. The impunity of the guilty parties put further pressure on trade union members and workers. In this respect, the international community had mobilized to demand the reopening of the trial which resulted in two innocent people being condemned for the assassination of the FTUWKC members.

Finally, he said it was deplorable that, despite the seriousness of the situation regarding freedom of association in Cambodia, the Government had not submitted reports due under Conventions Nos 87 and 98.

The Worker member of the United Kingdom asserted that although freedom of association was said to exist in Cambodia, in reality its exercise was severely restricted. Although workers were able to form unions - indeed, a multiplicity of unions existed - serious problems arose when unions attempted to bargain collectively. Workers were also subject to repression in the form of dismissals, intimidation, violence and even murder.

He stated that workers who attempted to engage in collective negotiations were routinely fired. Moreover, dismissals were easily resorted to, due to an extremely high incidence of contract labour in Cambodia: 60-70 per cent of workers were employed on short-term contracts, rendering true freedom of association all but impossible. He offered, by way of example, the case of the River Rich Trade Union, 30 members of which were dismissed in December 2006 after joining the union and having tried to negotiate a collective agreement. As they were on short-term contracts and had received dismissal compensation, the Arbitration Council denied their reinstatement. Fierce protests by factory workers followed these unfair dismissals. The company, for its part, failed to honour the compromise reached in February 2007, refused to reinstate the trade unionists in their jobs, bribed 20 dismissed workers into withdrawing their complaints, and continued with an anti-union campaign that included threats made against the union.

He added that the police had also been involved in the company's anti-union campaign, using tear gas to disperse a press conference organised by the Coalition of Cambodian Apparel Workers Democratic Union (CAWDU), a trade union federation of which the River Rich Trade Union is a branch, and attempting to arrest CAWDU's General Secretary and other union activists. Three unionists - Phin Sophea, Check Bunsan and Pom Chimma - were now facing criminal charges for having taken part in this legitimate protest.

He maintained that the repression of trade unionists took many forms, including the blacklisting and bringing of criminal charges against union members. In the case of the Fortune Garments Trade Union, he stated that the company brought charges against the union leader for inciting workers to strike, and sued the union's executive committee for US$50,000 - the equivalent of more than nine years' wages per committee member. The repression of trade union leaders could also turn deadly, as testified to by the assassinations of the trade union leaders Hy Vuthy, Chea Vichea and Ros Sovannareth.

He remarked that the power of the Arbitration Council was severely limited and the functioning of the Labour Department severely inadequate. In spite of the efforts of some international buyers and the ILO Better Factories project, violence persisted, illustrating the weakness of the rule of law and the general climate of violence and intimidation, directed particularly at the FTUWKC, which was identified as the most representative independent trade union in the garment sector by a joint World Bank and ILO Better Factories project report.

He concluded by stressing the need for an objective investigation, conducted by an ILO expert mission, and called upon the Government to take urgent measures to ensure the full respect for workers to exercise their rights without fear of dismissal, blacklisting, violence and even murder.

The Government representative thanked the Employer and Worker members for their contributions to the debate. He maintained, however, that some of the comments made had no basis in fact.

The Worker members emphasized that the Cambodian workers did not enjoy freedom of association in law or in practice. The Government should take action to ensure that the labour laws applied to civil servants and domestic workers; it should recognize the CITA and other independent unions; it should recognize and respect the right to strike; it should establish labour courts; and, particularly, it should bring an end to the climate of intimidation and impunity. The Worker members therefore called for a direct contacts mission.

The Employer members joined the Worker members' appeal to the Government to transpose the requirements of the Convention into law and practice. Recalling that freedom of association was the basis for social dialogue, they called upon the Government to provide a full picture of the freedom of association situation in Cambodia in its next report. Finally, they seconded the Worker members' request for an ILO direct contacts mission to the country.

The Committee took note of the statement made by the Government representative, as well as the discussion that took place thereafter. The Committee recalled that the Committee of Experts had referred to comments from the International Trade Union Confederation alleging permanent harassment against the Cambodian Independent Teachers' Association (CITA), the non-recognition of the Cambodian Construction Trade Union Federation (CCTUF), the arrests and disappearance of trade union leaders, police and military violence against workers and the conviction of two innocent men for the murder of a trade union leader. The comments further referred to a number of provisions in the labour legislation contrary to the Convention.

The Committee deplored the failure on the part of the Government to provide full reports to the Committee of Experts. It expressed its deep concern at the statements made concerning the assassination of the trade unionists: Chea Vichea, Ros Sovannareth and Hy Vuthy; death threats and the emerging climate of impunity in the country. The Committee, like the Committee of Experts, recalled that the right of workers' and employers' organizations could only be exercised in a climate free from violence, pressure or threats of any kind against the leaders and members of these organizations. It called upon the Government to take the necessary measures to ensure respect for this fundamental principle and bring an end to impunity. To this end, it urged the Government to take steps immediately to ensure full and independent investigations into the murders of the abovementioned Cambodian trade union leaders so as to bring, not only the perpetrators, but also the instigators of these heinous crimes to justice. The Committee urged the Government to accept an ILO direct contacts mission in respect of these serious matters. It expressed the firm hope that it would be in a position in the near future to note that significant progress had been made in bringing both law and practice into full conformity with the Convention and requested the Government to provide a detailed report to the Committee of Experts for its examination in 2007.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 27 September 2023 concerning: numerous obstacles to union registration; violence against trade unionists and impunity of perpetrators; misclassification of collective labour disputes and denial of judicial remedies; and gaps remaining in the Cambodian legislation which are incompatible with the Convention. Moreover, the ITUC alleges specific cases of serious union busting, police violence and the arrest and imprisonment of trade union leaders. The ITUC further refers to serious incidents of reported violations of the basic civil liberties of trade unionists including repression of their freedom of expression, accompanied by police intimidation and the persecution of union leaders for participating in peaceful strikes. The ITUC expresses its deep concern at the widespread anti-union climate in the country and the persistence of longstanding legal and practical obstacles to the exercise of freedom of association. The Committee requests the Government to provide its detailed comments on these serious allegations, as well as the remaining matters raised by the ITUC in its 2021 observations.

The Committee deeply regrets that the Government has not provided a report this year on the application of the Convention nor on the progress made in respect of the recommendations of the direct contacts mission which took place in March 2022 at the request of the Conference Committee on the Application of Standards in June 2021. The Committee therefore finds itself obliged to consider the matters raised in its previous comments and the direct contact mission recommendations without the benefit of any feedback from the Government on the measures that it may have taken or envisaged.

Trade union rights and civil liberties

Murders of trade unionists. The Committee recalls that its previous comment related to its long-standing recommendation, as well as that of the Conference Committee on the Application of Standards, 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). While noting that the Government of Cambodia came before the Committee on Freedom of Association within the framework of paragraph 69 of its special procedures, with a view to informing the Committee of the progress made in this regard (Case No. 2318, 404th Report, November 2023, paragraph 6), the Committee must observe with deep concern that the Government has yet to provide any information on the progress made in this regard. Recalling once again the need to conclude the ongoing investigations and to bring to justice the perpetrators and instigators of these crimes, the Committee firmly urges the competent authorities to take all necessary measures to expedite the process of investigation and report on meaningful progress.

Incidents during the January 2014 demonstrations. As regards the trade unionists facing criminal charges in relation to incidents during the January 2014 demonstrations, the Committee, in its previous comment requested the Government to continue providing information on the pending legal procedures against trade unionists, in particular on any verdicts issued, and to provide detailed information on any court rulings resulting from the conclusions of the fact-finding committees investigating the allegations of killings, physical violence and arrests of protesting workers, as well as all materials from the fact-finding committees’ reports that do not directly implicate internal affairs of the country. The Committee notes the 2022 recommendation of the direct contacts mission that the Government review the lists of workers who still have criminal charges pending with the unions concerned and provide greater clarity in respect of any remaining charges and action taken, as well as any final court judgments. The Committee deeply regrets that the Government has provided no information in this respect, over one year since the direct contacts mission visited the country and issued its recommendations. The Committee therefore urges the Government to review the list of pending cases with the trade unions concerned and provide detailed information on each and every case of criminal prosecution related to the January 2014 demonstrations.

Violence, intimidation, arrest and imprisonment of trade unionists for carrying out peaceful industrial action. Training of police forces in relation to industrial and protest action. The Committee further recalls the conclusions of the Committee on the Application of Standards calling upon the Government to take all necessary measures to stop arbitrary arrest, detention and prosecution of trade unionists for undertaking legitimate trade union activity. The Committee notes with deep concern the latest allegations from the ITUC of ongoing arrests of workers involved in a dispute with a casino operation. The Committee notes that this matter has been raised before the Committee on Freedom of Association, which urged the Government to ensure the immediate and unconditional release of the union President (see 404th Report, paragraphs 203 and 207(c)). Recalling its previous request that the Government provide information on the number of police officers participating in training sessions, the duration of such training and the subjects covered, including whether disciplinary consequences of the use of excessive force are part of the training, the Committee notes the direct contacts mission recommendation concerning the criminalization and politicization of trade union activity and the need for clear instructions to be given so that resort to police in relation to strike action is only made if there is a genuine threat to public order and so that the intervention is proportionate to the threat to public order and avoids the danger of excessive violence. The Committee urges the Government to ensure that all trade unionists detained for undertaking legitimate trade union activity are immediately released. It requests the Government to provide detailed information on the measures taken to consider further measures, including through the development of guidelines, to ensure that peaceful industrial action is not repressed. It also requests information on the progress made to ensure regular and systematic training programmes of labour inspectors, labour dispute officers, police officers, workers and employers, as recommended by the direct contacts mission. Regretting that the Government has not provided any information in reply to its previous request, the Committee reiterates its request for detailed information on the number of police officers trained, the duration of the training, the subjects covered and whether disciplinary consequences for the use of excessive force are also part of the training.

Legislative issues

Article 2 of the Convention. Rights of workers and employers, without distinction whatsoever, to establish and join organizations. Civil servants and public sector teachers.Noting with regret that the Government has not provided any information on the manner in which the freedom of association rights of civil servants are protected, the Committee must once again urge the Government to take appropriate measures, in consultation with the social partners concerned, to ensure that civil servants – including public sector teachers – who are not covered by the Law on Trade Unions (LTU) are guaranteed their rights under the Convention, and that the legislation applicable to them is amended accordingly.

Domestic workers. The Committee recalls that in its previous comments it observed the deep concern expressed by workers’ organizations relating to the difficulties faced by domestic workers and workers in the informal economy in forming or joining unions, since the LTU provides for an enterprise union model, whose requirements are often very difficult to meet by these workers. The Committee requests the Government to provide detailed information on the steps taken to promote the full and effective enjoyment of the rights under the Convention by domestic workers and workers in the informal economy, and recalls that consideration of the adaptation of the legislative framework to expressly enable the formation of unions by sector or profession may facilitate the exercise of the rights under the Convention by those workers.

Application in practice. Trade union registration. The Committee recalls the 2021 conclusions of the Committee on the Application of Standards calling upon the Government to ensure that workers are able to register trade unions through a simple, objective and transparent process. The Committee notes in this respect the conclusions and recommendations of the 2022 direct contacts mission that practical hurdles to the formation and functioning of trade unions, particularly on trade union registration or recognition of their most representative status, should be rapidly addressed. The direct contacts mission proposed that simplifying the registration forms and ensuring that clear instructions are given to Ministry officials that only the requirements that are specifically set out in the law can be requested in order to grant registration would facilitate the process. The direct contacts mission further recommended that all discretionary authority be eliminated (such as requests to the union to provide the employee list) and training provided, including with ILO technical assistance, to build the capacity of Ministry officials and trade unions in the understanding of expectations in this regard. Lastly, the direct contacts mission suggested that an online database showing requests for registration, pending issues and final resolution would help the transparency of the process and demonstrate the consistency of application. Regretting that the Government has not provided any information on the steps taken to address the various practical hurdles to registration, the Committee urges it to provide detailed information in this regard.

Articles 2 and 3. Financial audit and maintenance of registration. In its previous comment, the Committee observed that the 2019 amendments to the LTU introduced: (i) a new section 27 requiring organizations not only to present a financial statement to their members but also to have them audited by an independent firm if so requested by either any donor or by a percentage of its members (10 per cent for local unions and 5 per cent for federations or confederations); and (ii) a new section 17 on maintenance of registration, requiring not only the submission of annual financial statements and activity reports, but also their audit by an independent audit firm if so requested by either any donor or by a percentage of its members (10 per cent for local unions and 5 per cent for federations or confederations). Observing that these provisions could subject unions to the threat of frivolous audit requests, which would entail an onerous burden to maintain registration, the Committee once again requests the Government, in consultation with the social partners concerned, to revise sections 17 and 27 of the LTU, so that audits to the financial statements and activity reports are only required if there are serious grounds for believing that the actions of an organization are contrary to its rules or to the law.

Article 3. Right to elect representatives freely. Requirements for leaders, managers, and those responsible for the administration of unions and of employer associations. In the absence of any information from the Government, the Committee once again requests the Government to take the necessary measures to remove the requirement to read and to write Khmer from sections 20, 21 and 38 of the LTU and to provide information on the progress made in this regard.

The right of workers’ organizations to organize their activities and formulate their programmes. In its previous comments, the Committee referred to the need to amend section 326(1) of the Labour Law whereby, in the absence of agreement between the parties on the minimum service in an enterprise for the protection of the facility installations and equipment where a strike is taking place, the Ministry of Labour and Vocational Training (MLVT) is empowered to determine the minimum service in question. The Committee also requested the Government to provide information on the application in practice of section 326(2) of the Labour Law, in particular any example of the sanctions imposed on workers for serious misconduct. Regretting that the Government has not provided any additional information in this respect, the Committee requests the Government to indicate the steps taken, in consultation with the social partners concerned, to amend section 326 of the Labour Law and to provide information on its application in practice.

The Committee also noted in its previous comments that the ITUC denounced, as common practices, the replacement of workers and the granting of injunctions to preclude industrial action, even when all the procedures had been followed by the unions. The Committee notes the conclusions of the direct contacts mission concerning the need to clarify the role of the Committee on Strike and Demonstration in labour dispute resolution and ensure that it does not restrict the legitimate right of workers’ organizations to engage in industrial action in defence of their members’ interests. The Committee once again requests the Government to hold a comprehensive tripartite dialogue on the issues raised concerning the legality of the exercise of industrial action, with a view to reviewing existing regulations and their application in practice, and undertaking any necessary measures to guarantee the lawful and peaceful exercise of the right to strike.

Article 4. Dissolution of representative organizations. The Committee recalls that its previous comments concerned section 28(2) of the LTU, which provides that a union is automatically dissolved in the event of a complete closure of the enterprise or establishment and the need to ensure that workers’ or employers’ organizations should only be dissolved on the basis of the procedures laid down by their statutes, or by a court ruling. The Committee once again requests the Government to take the necessary measures to amend section 28 of the LTU by repealing section 28(2) and to provide information on the steps taken in this regard.

Grounds to request dissolution by the Court. Recalling 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 so as to leave to the unions’ or employers’ associations own rules and by-laws the determination of the procedures for their dissolution by their members.

Practical application

Independent adjudication mechanisms. In its previous comments, the Committee noted the ITUC’s observations denouncing the refusal of the MLVT to allow upper-level trade unions to represent or provide support to their members in collective disputes and the example given where the authorities allegedly declared that leaders of federations and confederations were not allowed to speak during the meeting of a collective labour dispute conciliation case. The Committee regrets that the Government has not provided any information in reply and observes that these concerns relate to the functioning of independent adjudication mechanisms, such as the Arbitration Council (AC). The Committee recalls in this respect its previous comments concerning the importance of ensuring the effectiveness of the judicial system as a safeguard against impunity, while at the same time, its encouragement to the Government in its commitment to strengthen the AC as an important means to protect workers’ freedom of association rights during labour disputes. The Committee notes from the conclusions of the direct contacts mission that there were several complaints regarding the classification of disputes before the AC, such as the classification of termination of a trade union officer as an individual dispute, preventing that specific allegation from being heard. The Committee notes the recommendation in the report of the direct contacts mission that dismissals of trade union leaders prior to or after the union’s registration should be considered as a collective dispute that may be referred for rapid action to the AC. Additionally, the direct contacts mission recommended that any evolution in the functioning of the AC considered by the Government should take place only after full and meaningful consultations with all parties and stakeholders. Lastly, the Committee notes the strong recommendation of the direct contacts mission that urgent action be taken to recruit and train new arbitrators and that union confederations and federations be able to represent their members without requiring prior approval from the MLVT. Emphasizing the importance of the independence of adjudication mechanisms, the Committee requests the Government to provide detailed information on any evolution in the functioning of the AC, and to include statistics on the number and nature of disputes brought before it and the extent of compliance with non-binding AC awards, as well as on any court rulings to ensure that the AC awards, when binding, are duly enforced.

Finally, the Committee notes that the direct contacts mission observed that the road map and progress reports on the implementation of the 2017 direct contacts mission’s recommendations were to some degree administratively complex, focusing more on procedure than action-oriented results. The direct contacts mission therefore suggested that the Government simplify the road map and its progress report, in full consultation with the social partners and with the support of the ILO, to identify priority areas of urgent action on the basis of its recommendations and those of the ILO supervisory bodies with clear deliverables and time frames, ensuring accountability and transparency. Regular review of the adequacy of the steps taken should be conducted with all the parties involved. The Committee regrets that the Government has not provided any information on the steps taken in this regard and requests it to indicate the measures taken to engage the social partners concerned in prioritizing areas for action with reference to all its above requests, setting out clear deliverables, responsible bodies and time frames.

The Committee notes with deep concern: the long-standing nature of important issues raised in this comment; the lack of progress on the development of a road map with the social partners, as recommended by the DCM, prioritizing matters for rapid attention and resolution; the new allegations of serious violations of basic civil liberties essential to the exercise of freedom of association, including the arrest and detention of trade unionists and; the total absence of a report from the Government this year. In these circumstances, the Committee considers that this case meets the criteria set out in paragraph 109 of its General Report to be asked to come before the Conference.

[The Government is asked to supply full particulars to the Conference at its 112th Session and to reply in full to the present comments in 2024.]

Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Article 2 of the Convention. Right of workers to establish organizations without previous authorization. Registration requirements. In its previous comments, the Committee had observed that the March 2017 direct contacts mission highlighted concerns raised by workers’ organizations in relation to the requirements for acquisition and maintenance of registration and their application in practice, including allegations of arbitrary denial of applications and of introducing through regulations new requirements not set out in the law. The Committee had noted that, as reported by the Government: (i) following a trade union forum on the matter, the Ministry of Labour and Vocational Training (MLVT) issued Instruction No. 39/18, directing all departments in charge of registration to facilitate the registration process, including as to not requiring family background and allowing administration staff of the federation or confederation union to assist local worker unions members; (ii) 72 labour inspectors participated in a training on registration procedures; and (iii) on 31 May 2019, the MLVT issued Instruction No. 53/19, calling on the competent departments to revise the required documents for federations and confederations of workers’ unions, eliminating a number of requirements. The Committee notes that the Government further reports that: (i) the requirements set out in the Law on Trade Unions (LTU) should not be construed as barriers to registration; (ii) the MLVT has not received any complaint purely regarding the rejection, suspension or dismissal of registration; (iii) requests by the registrar to rectify incorrect information in an application form should not be construed as a restriction to registration; (iv) the legal procedures are to ensure that trade unions are established to protect the legitimate rights and benefits of workers; (v) the developments in the registration procedures are reflected in the increasing number of trade union registrations, in spite of the challenges posed by the COVID-19 pandemic - with 394 new organizations registered; and (vi) the MLVT welcomes all complaints with respect to the registration process so the authorities can investigate and address them. The Committee, on the other hand, notes that the observations of the International Trade Union Confederation (ITUC) allege, referring to concrete examples, that despite some amendments to the application forms, the registration of trade unions remains difficult, with applications denied for arbitrary reasons or for extremely minor technical errors. The Committee requests the Government to provide its comments in this respect and, in consultation with workers’ organizations, to continue assessing the operation of the registration procedures, as well as taking any additional necessary measures to ensure that registration operates as a simple and swift formality that does not entail any discretion or prior authorization.

Articles 2 and 3. Financial audit and maintenance of registration. In its previous comment, the Committee observed that the 2019 amendments to the LTU introduced: (i) a new section 27 requiring organizations not only to present a financial statement to their members but also to have them audited by an independent firm if so requested by either any donor or by a percentage of its members (10 per cent for local unions and 5 per cent for federations or confederations); and (ii) a new section 17 on maintenance of registration, requiring not only the submission of annual financial statements and activity reports, but also their audit by an independent audit firm if so requested by either any donor or by a percentage of its members (10 per cent for local unions and 5 per cent for federations or confederations). The Committee considers that these provisions could subject unions to the threat of frivolous audit requests, which would entail an onerous burden to maintain registration. Such audits should only be required if there are serious grounds for believing that the actions of an organization are contrary to its rules or the law (which should not infringe the principles of freedom of association enshrined in the Convention), for example substantiated claims of embezzlement or lack of legitimacy or independence. The Committee notes that the ITUC observations allege in this respect that the LTU grants excessive financial control by the authorities, including unlimited audits, which infringes the right of workers to administer their organizations.  Noting that the Government does not provide any additional comments in this regard, the Committee once again requests it, in consultation with the representative organizations concerned, to revise sections 17 and 27 of the LTU, so that audits to the financial statements and activity reports are only required if there are serious grounds for believing that the actions of an organization are contrary to its rules or to the law.

Quorum and decision-making requirements in union’s by-laws. In its previous comments, the Committee had noted the Government’s indication that requirements for union by-laws set out in section 13 of the LTU (absolute majority quorum for decisions on strike and on amendment to statutes, as well as for general assemblies of unions, and an absolute majority vote for a decision to go on strike) did not require actual presence through face to face meetings, and that unions may opt for any convenient way to convene and determine participation in their meetings, as stipulated in their by-laws, as long as the meeting quorum is met. The Government further indicated that misunderstandings concerning the application of the provision were clarified during the tripartite workshop of 24 March 2017 but that there was room for improvement through further consultations; that since the workshop the MLVT had not received any inquiries related to the application of section 13 of the LTU; and that an annual trade union forum was being conducted to review the implementation of the LTU. Not having received any additional information on the matter, the Committee expects that the Government will continue to take any necessary measures, including in the context of further amendments to the LTU, to clarify the application of the quorum requirements and enable unions to freely determine in their statutes or by-laws any alternative means to actual presence (such as proxies or delegations) to meet the required quorum, including in relation to higher level organizations.

Article 3. Right of employers’ and workers’ organizations to organize their activities and formulate their programmes. In its previous comments, the Committee referred to the need to amend section 326(1) of the Labour Law whereby, in the absence of agreement between the parties on the minimum service in an enterprise for the protection of the facility installations and equipment where a strike is taking place, the MLVT is empowered to determine the minimum service in question. The Committee also requested the Government to provide information on the application in practice of section 326(2) of the Labour Law, in particular any example of the sanctions imposed on workers for serious misconduct. The Committee had noted the Government’s indication that the MLVT had consulted with the relevant parties on the application of section 326 of the Labour Law in drafting a regulation to determine the minimum services in an enterprise where a strike is taking place. The Committee had further welcomed the Government’s indication that it would request ILO technical assistance to organize a tripartite consultation on the draft regulation. Not having received any additional information on the matter and recalling its previous recommendations, the Committee requests the Government to provide information on any developments in this regard, including as to the application in practice of section 326 of the Labour Law.

The Committee had also noted in its previous comments that the ITUC denounced, as common practices, the replacement of workers and the granting of injunctions to preclude industrial action, even when all the procedures had been followed by the unions. The ITUC observations included allegations of violent repression of strikes by hired criminals, as well as of mass dismissals of striking workers and of detention of union leaders organizing strike action in the garment sector. The Committee had also noted that, according to the Government: (i) injunctions were issued to protect private properties and prevent the loss of welfare or lives of workers; (ii) injunctions were never issued against strikes properly conducted in accordance with the law, but only if the strike was illegal, so that all striking workers were required to return to work within 48 hours and otherwise were considered as having committed serious misconduct and are subject to dismissal; (iii) due to the lack of effective enforcement of related laws and regulations, the increase in illegal strikes by opportunist trade union leaders for their personal benefit would jeopardize the effort to develop constructive and peaceful industrial relations; and (iv) 99 per cent of the strikes did not comply with at least one or more of the legal requirements. The Committee had thus observed that both the ITUC’s observations and the Government’s reply confirmed the existence of important issues and challenges concerning the legality of the exercise of industrial action in the country.  Not having received any additional information on the matter, the Committee requests once again the Government to hold a comprehensive tripartite dialogue on the issues raised concerning the legality of the exercise of industrial action, with a view to reviewing existing regulations and their application in practice, and undertaking any necessary measures to guarantee the lawful and peaceful exercise of the right to strike.

Articles 5 and 6. Capacity of higher-level organizations to represent their members. The Committee notes that the ITUC observations denounce the refusal of the MLVT to allow upper-level trade unions to represent or provide support to their members in collective disputes. The ITUC alludes, as an example, to a collective labour dispute conciliation case in which the authorities allegedly declared that leaders of federations and confederations were not allowed to speak during the meeting and were told that unions with most representative status could not have anyone represent them. The Committee requests the Government to provide its comments in this respect.

Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2021, concerning matters examined in this comment and also denouncing that in August 2021: (i) Rong Chhun, the president of the Cambodian Confederation of Unions (CCU) and ex-president of the Cambodian Independent Teachers’ Association (CITA), who was arrested in July 2020 following his advocacy for villagers in a land dispute along the Cambodia–Vietnam border, was sentenced to two years imprisonment; and (ii) Sar Kanika, president of the Cambodian Informal Labourers’ Association, who also participated in these trade union activities in defence of the economic interests of farmers, was similarly sentenced to 20 months imprisonment. The Committee welcomes the news on the release of Mr Chhun and Ms Kanika in November 2021.

The Committee notes that the ITUC further denounces that over the past year a number of emergency laws and decrees were passed restricting the exercise of freedom of association. The ITUC alludes in particular to: (i) the Law on the Management of the Nation in Emergencies, alleging that it grants the Government broad powers to ban meetings and gatherings, to survey telecommunications, to ban or restrict news media that may harm “national security” and other measures that are “suitable and necessary”, with infractions punishable by heavy imprisonment terms and fines; and (ii) the Law on Measures to Prevent the Spread of COVID-19 and other Serious, Dangerous and Contagious Diseases, which includes bans on gatherings and unspecified “administrative and other measures that are necessary to respond and prevent the spread of COVID-19”. The ITUC alleges that such vague provisions allow for abuses by the authorities through arbitrarily targeting people and organizations protesting government policies. The ITUC also alleges that a problematic draft public order law would require approval from authorities for the use of public spaces and would permit authorities to stop an event if authorization has not been sought. The ITUC further alleges that Mrs Soy Sros, president of a local union affiliated to the Collective Union of Movement of Workers, was detained on 3 April 2020 by police in the Kompong Speu Province pursuant to a criminal complaint filed against her by the employer for having posted messages on social media related to a labour dispute concerning the unjust dismissal of a number of union members. The Committee notes that, as to the need to investigate allegations of violent repression of trade union activity, and detention or prosecution of trade union leaders for undertaking legitimate trade union activities, the Government: (i) informs that grievance and complaint procedures are in place at all levels and that any individual, including trade unionists, can use and benefit from them; (ii) notes in general that trade unions and trade unionists must submit their grievances to the responsible authorities, who will take immediate action in accordance with applicable rules and procedures, and provide relevant information so that the Ministry of Labour and Vocational Training (MLVT) can provide legal assistance accordingly; and (iii) states that if trade union leaders commit any criminal offence they shall be liable for it. While observing from publicly available information that there has been some evolution concerning the release of Mrs Soy Sros, the Committee regrets that the Government has not provided more information as to other specific allegations submitted to it by workers’ organizations and requests it to provide its detailed comments on all these serious allegations.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 109th Session, June 2021)

The Committee notes the discussion which took place in June 2021 in the Conference Committee on the Application of Standards (the Conference Committee) concerning the application of the Convention by Cambodia. The Committee observes that the Conference Committee expressed deep concern at the continuing acts of violence against workers, the arrests of trade unionists in connection with their activities as well as the lack of effective and timely investigations in relation to these incidents and urged Government to: (i) investigate all allegations of violent repression of trade union activity and detention of trade union leaders; (ii) take all necessary measures to expedite the investigations into the murders of trade union leaders Chea Vichea and Ros Sovannareth (in 2004) and Hy Vuthy (in 2007) and ensure that the perpetrators of the crimes are brought to justice; (iii) undertake all necessary efforts to settle the legal proceedings against trade unionists in connection with the incidents during the January 2014 demonstrations, ensure that no criminal charges or sanctions are imposed in relation to the peaceful exercise of trade union activities and drop all criminal charges for those trade unionists charged in connection with the January 2014 demonstrations; and (iv) take all necessary measures to stop arbitrary arrest, detention and prosecution of trade unionists for undertaking legitimate trade union activity. The Conference Committee also noted that, while some positive steps have been achieved in bringing the law in line with the Convention, serious compliance issues remain unaddressed, and called upon the Government to: (1) provide the reports of the three committees charged with investigations into the murders of, and violence perpetrated against trade union leaders to the Committee of Experts; (2) ensure that acts of anti-union discrimination are swiftly investigated and that, if verified, adequate remedies and dissuasive sanctions are applied; (3) with the help of ILO technical assistance, develop guidelines, a code of practice or a handbook on the policing and handling of industrial and protest actions; (4) amend the Law on Trade Unions, in consultation with the social partners, to ensure compliance with the Convention; (5) ensure that workers are able to register trade unions through a simple, objective and transparent process; (6) continue to identify appropriate legal measures, in consultation with the social partners, to ensure that teachers, domestic workers and civil servants not covered by the Law on Trade Unions (LTU) have the freedom of association rights under the Convention; (7) repeal the literacy requirement in sections 20, 21 and 38 of the LTU; repeal paragraph 2 of section 28 of the LTU on the automatic dissolution of workers’ organizations in case of complete closure of an enterprise or establishment and repeal section 29 of the LTU on the dissolution of employers’ and workers’ organizations initiated by members of those organizations; (8) discuss with the social partners the possibility of allowing the formation of employers’ and workers’ organizations by sector or profession; and (9) increase its efforts to make the Arbitration Council an effective and sustainable institution in handling labour disputes and ensure that binding Arbitration Council decisions are effectively enforced in law and in practice. Finally, the Conference Committee recommended that the Government accept a direct contacts mission as soon as possible. In this respect, the Committee welcomes that by a communication of 10 August 2021 the Government accepted the direct contacts mission and is in contact with the ILO in order to organize its realization whenever feasible in the context of the COVID-19 pandemic.

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: (i) as to the murder of Chea Vichea the Government indicates that re-investigation is currently under the authority of the Phnom Penh Police, noting that in spite of the challenges the police have been making an effort to end the case, and reiterating that close collaboration of family members and all parties concerned remains indispensable; (ii) with regard to the murder of Ros Sovannareth, the Government recalls that the Court of Appeal reconsidered the case and issued a verdict in July 2019, where the suspect Thach Saveth was sentenced to 15 years of imprisonment for premeditated murder; and (iii) concerning the murder of Hy Vuthy, the Government recalls that Chan Sophon, the suspect who was arrested in September 2013, filed an appeal and was released in February 2014, and notes that the other suspect who was also sentenced in absentia, Phal Vannak, is under arrest warrant. The Committee notes, on the other hand, that the ITUC denounces once again the nonresolution and lingering impunity with regard to these murders 17 and 14 years after they occurred. The Committee reiterates its deep concern at the lack of progress concerning the investigations, and refers in this respect to the conclusions and recommendations of the Committee on Freedom of Association in its examination of Case No. 2318 (see 396th Report, November 2021, paragraphs 166 to 172).  Recalling once again the need to conclude the investigations and to bring to justice the perpetrators and the instigators of these crimes, the Committee firmly urges the competent authorities to take all necessary measures to expedite the process of investigation and report on meaningful progress.

Incidents during the January 2014 demonstrations. Concerning the trade unionists facing criminal charges in relation to incidents during the January 2014 demonstrations, in its previous comment the Committee had noted with interest that the six trade union leaders that had initially been sentenced to a suspended three years and six months imprisonment were acquitted of all charges on 28 May 2019; had further noted, as to other trade unionists under judicial procedures, that a working group had been established to follow up with the court in order to expedite the settlement; had taken note of detailed statistics concerning the settlement efforts; and had requested the Government to continue providing information on pending procedures. The Committee notes that in its latest report the Government: (i) reiterates that the riot that took place could not be considered as peaceful exercise of trade union activities, and that it was a politically motivated act; (ii) states that the complaints were submitted to the competent courts that ruled at their discretion in accordance with the evidence provided (some suspects were discharged if they were innocent in accordance with procedural rules); (iii) indicates that as of November 2021 there were few criminal cases under the court proceedings and none of these cases were related to the exercise of freedom of association; and (iv) recalls that the MLVT and the Ministry of Justice have been working together to provide legal support to trade unionists whose court cases are still pending. The Committee notes, on the other hand, that the ITUC: (i) recalls that garment workers were protesting for a liveable minimum wage and that, in return, military police opened fire killing and wounding several of them; (ii) laments that after seven years there remain unsolved cases concerning the arbitrary arrests and detention of trade unionists following the 2014 protests; and (iii) denounces that several trade unionists still have criminal or civil charges pending against them for their peaceful participation in the demonstrations. The Committee further notes that, in reply to the request of the Conference Committee to provide the reports of the three committees charged with investigations into the murders of, and violence perpetrated against, trade union leaders, the Government reiterates that it cannot share the detailed reports of the three committees as they pertain to internal affairs of the country, but that, as reported to the direct contacts mission in 2016, the conclusions of the three committees were submitted to the competent courts for further proceedings and the Government will be able to share the outcome of the court proceedings once available. The Committee requests the Government to continue providing information on the pending legal procedures against trade unionists, in particular on any verdicts issued, as well as to provide detailed information on any court rulings resulting from the conclusions of the fact-finding committees investigating the allegations of killings, physical violence and arrests of protesting workers, as well as all materials from the fact-finding committees’ reports that do not directly implicate internal affairs of the country.

Training of police forces in relation to industrial and protest action. In its previous comments, 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 duly notes that the Government informs that: (i) 120 police officers from four different units received the training co-organized by the MLVT and the Office of the High Commissioner for Human Rights, with the support of the ILO; (ii) follow-up trainings took place in 2020, with a total of 550 police officers participating in trainings on the rights to strike and peaceful demonstration; and (iii) in light of the outcomes of such trainings, the MLVT will continue liaising with relevant institutions to conduct consultations on the development of a guideline on measure on labour disputes and industrial action, and a request for technical support will be submitted to the ILO in due course. The Committee requests the Government to continue providing information in this regard, in particular as to the development, with the assistance of the ILO, of guidelines, a code of practice or a handbook on the policing and handling of industrial and protest actions, and as to the number of police officers participating in training sessions, the duration of such training, and the subjects covered, including as to whether the disciplinary consequences of using excessive force are part of the training.

Legislative issues

The Committee notes that the Government reiterates the information provided on the amendments to the LTU that entered into force in January 2020, stating that they resulted in an increment in the number of professional organizations registered, and indicating that out of the 5,650 professional organizations registered, 5,352 are local worker unions, 247 federations of worker unions, 40 confederations of worker unions and 11 employer associations. The Committee notes the Government’s indication that it is unnecessary to further amend the LTU; the Government notes that a key priority is to raise awareness of trade unionists on the provisions of the LTU, it welcomes further consultations to review the content of the LTU and its implementation and it would like to seek ILO support to organize trainings on the LTU to build the capacity of social partners. The Government further encourages workers and trade unionists to bring any complaint to the MLVT in the event of any irregularity with respect to registration, representation and exercise of freedom of association under the LTU. On the other hand, the Committee notes that the ITUC alleges that the amendments to the LTU failed to bring it into conformity with the Convention and that trade unions report that the Government did not meaningfully engage with them and refused to consider the unions’ proposed amendments, which would have ensured compliance with the Convention.

Article 2 of the Convention. Rights of workers and employers, without distinction whatsoever, to establish and join organizations. In its previous comments the Committee has been urging 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 the Government reiterates that the LTU is applicable to teachers working for private institutions and that civil servants and public school teachers can enjoy freedom of association pursuant to the Law on Associations and Non-Governmental Organizations (LANGO). The Government adds that the Convention does not require that the freedom of association of all individuals be covered by a single legal instrument, and indicates that these different regimes are due to the administrative system and division of authorities of the state institutions in charge of the registration of professional organizations. In this respect, the Committee must recall once again its prior emphasis that some provisions in the LANGO contravene freedom of association rights of civil servants under the Convention, as that law 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 has been noting that workers’ organizations and associations express deep concern at the lack of protection of teachers’ trade union rights (referring in particular to sanctions and threats to teachers seeking to organize). The Committee notes that the ITUC observations allege again that the regressive framework of the LANGO is not compliant with the Convention.  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 public sector teachers – who are not covered by the LTU are fully ensured their freedom of association rights under the Convention, and that the legislation applicable to them is amended accordingly.

As to domestic workers, the Committee notes that the Government states that the LTU is applicable to them. Furthermore, concerning the possibility of forming organizations by sector or profession, the Government indicates that there is no prohibition on the formation of organizations by sector or profession as long as the criteria stipulated in the LTU are met, and claims that the Convention does not require national law to expressly stipulate such provision. The Government adds that it would like to seek ILO assistance to organize trainings to promote public awareness of workers and employers in this regard. Having duly noted these indications, the Committee recalls that workers’ organizations have been expressing deep concern as to the difficulties faced by domestic workers and also 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 that the law in practice does not allow for the creation of unions by sector or profession. The Committee further notes that the ITUC once again highlights in its observations, as one of the most relevant shortcomings of the national legislation, that domestic workers, workers in the informal economy and others not organized on an enterprise model, still cannot in practice form and join unions. The Committee encourages the Government to promote the full and effective enjoyment of the rights under the Convention by domestic workers and workers in the informal economy. For these workers and other workers who are not easily organized on an enterprise level model, the Committee requests the Government to take any necessary measures to allow the formation of unions by sector or profession, in consultation with the social partners and with the assistance of the ILO.

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 comment the Committee had requested 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 notes that the Government indicates in this respect that the LTU was amended through tripartite consensus and that the requirement is not incompatible with the Convention. On the other hand, the Committee notes that the ITUC observations denounce again the requirement as one of the important pending hurdles to conform the LTU to the Convention. The Committee further recalls that the legal imposition of literacy requirements for the eligibility of representatives is incompatible with the Convention (see 2012 General Survey on the fundamental Conventions, paragraph 104). The Committee requests once again that the Government take the necessary measures to remove the requirement to read and to write Khmer from sections 20, 21 and 38 of the LTU. 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 observed 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. The Committee notes that the Government reiterates that the amendment was made to ensure the interests of workers and trade unions when the enterprise is closed down, that the amendment was thus welcomed by the unions, and that as local unions are legally attached to the existing enterprise where they are formed, when that enterprise no longer legally exists the local union should no longer exist either. In this respect, the Committee must recall 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, including against any legal successors of the former company). 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 that the Government take the necessary measures to amend section 28 of the LTU accordingly by fully removing its paragraph 2.

Grounds to request dissolution by Court. The Committee has also been requesting 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 recalled in its previous observation that the manner in which members may request dissolution should be left to the organization’s by-laws. Noting that the Government does not provide any additional comments in this regard, the Committee once again requests it to take the necessary measures to amend section 29 of the LTU so as to leave to the unions’ or employers’ associations own rules and by-laws the determination of the procedures for their dissolution by their members.

Application of the Convention in practice

Independent adjudication mechanisms. In its previous comments the Committee has been recalling 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 has also 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 with interest the Government’s indication that the new amendment to the Labour Law has expanded the jurisdiction of the AC to also cover individual disputes, and that the Government reiterates its firm commitment to supporting the operation of the AC and ensuring the sustainability of this institution. The Committee further notes that the Government indicates, as to the AC decisions, that the disputing parties are required to choose between a binding or a non-binding award from the outset, and that in case of non-compliance with a binding award the party concerned may file a complaint to the competent court to seek enforcement. Emphasizing the importance of the independence of adjudication mechanisms, the Committee invites the Government to continue to provide information on the operation of the AC, including on the number and nature of disputes brought before it and as to the extent of compliance with non-binding AC awards, as well as the use of the courts to ensure that the AC awards, when binding, are duly enforced, including the number of court rulings issued to this end.

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

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

Article 2 of the Convention. Right of workers to establish organizations without previous authorization. Registration requirements. In its previous comments, the Committee had observed that the March 2017 direct contacts mission (DCM) highlighted in its report concerns raised by workers’ organizations in relation to the requirements for acquisition and maintenance of registration and their application in practice, including allegations of arbitrary denial of applications (for example, on the grounds of simple typos) and of introducing through regulations new requirements not set out in the law (such as detailed biographical information about trade union leaders and their families or detailed listing of all workers participating in elections). The Committee requested the Government to take any necessary measures: (i) to ensure that the registration process is conducted swiftly in a simple, objective and transparent manner that does not entail any discretion or prior authorization; and (ii) in broad consultation with workers’ organizations, to remove requirements that, while not indispensable for the registration, may discourage or complicate the registration process, and to amend as needed and assess the application of the Law on Trade Unions (LTU) and its regulations on registration in this respect. The Committee notes that the Government informs that on 13 December 2018 it organized a trade union forum on the implementation of the LTU in order to discuss the challenges concerning trade union registration. As a result, the Ministry of Labour and Vocational Training (MLVT) issued Instruction No. 39/18, directing all departments in charge of registration to facilitate the process as follows: (i) do not require family background information of union leaders; (ii) do not require worker employment cards and national social security fund immediately and allow these documents to be provided within 45 days of the date of receipt of registration; and (iii) allow the administrative staff of federations or confederations to assist with the registration of local unions who are their members. The Government adds that 72 labour inspectors participated in a training on registration procedures. The Government informs that following the adoption of the LTU in 2016 and until the first semester of 2019, the MLVT registered 1,419 new unions. According to the Government, this shows that the number of registrations has multiplied by four (in comparison to the registrations taking place before the LTU – for example in 2015 only 238 new trade unions had been registered) and that the LTU does not restrict freedom of association. Furthermore, the Government indicates that on 31 May 2019, the MLVT issued Instruction No. 53/19, calling the competent departments to revise the required documents for federations and confederations of workers’ unions, eliminating the following requirements: to submit membership cards and workers list (it being sufficient to provide the list of members who paid the membership dues with the employers’ confirmation); to update the unions or federations that are members; to submit any financial report and activity report if the unions or federations have already submitted the reports to their members and copied the MLVT; and to provide any bank account of the unions or federations (in the event that the unions or federations already submitted the bank account to the MLVT). The Committee welcomes the measures undertaken to facilitate the registration process and invites the Government to continue assessing its operation in consultation with workers’ organizations, with a view to considering any additional necessary measures to ensure that registration operates as a simple formality that does not entail any discretion or prior authorization.

Articles 2 and 3. Financial audit and maintenance of registration. The Committee further observes that the 2019 amendments to the LTU introduced: (i) a new section 27 requiring organizations not only to present a financial statement to their members but also to have them audited by an independent firm if so requested by either any donor or by a percentage of its members (10 per cent for local unions and 5 per cent for federations or confederations); and, similarly; (ii) a new section 17 on maintenance of registration, requiring not only the submission of annual financial statements and activity reports, but also their audit by an independent audit firm if so requested by either any donor or by a percentage of its members (10 per cent for local unions and 5 per cent for federations or confederations). The Committee considers that these provisions could subject unions to the threat of frivolous audit requests, which would entail an onerous burden to maintain registration. Such audits should only be required if there are serious grounds for believing that the actions of an organization are contrary to its rules or the law (which should not infringe the principles of freedom of association enshrined in the Convention), for example substantiated claims of embezzlement or lack of legitimacy or independence. The Committee requests the Government, in consultation with the representative organizations concerned, to revise sections 17 and 27 of the LTU, so that audits to the financial statements and activity reports are only required if there are serious grounds for believing that the actions of an organization are contrary to its rules or to the law.

Quorum and decision-making requirements in union’s by-laws. In its previous comments the Committee had noted the Government’s indication that requirements for union by-laws set out in section 13 of the LTU (setting out an absolute majority quorum for decisions on strike and on amendment to statutes, as well as for general assemblies of unions, and an absolute majority vote for a decision to go on strike) did not require actual presence through face to face meetings, and that unions may opt for any convenient way to convene and determine participation in their meetings, as stipulated in their by-laws, as long as the meeting quorum is met. The Government further indicated that misunderstandings concerning the application of the provision were clarified during the tripartite workshop of 24 March 2017 but that there was room for improvement through further consultations. The Committee notes that in its last report the Government indicates that, since the workshop of 24 March 2017, the MLVT has not received any inquiries relation to the application of section 13 of the LTU and that an annual trade union forum is being conducted to review the implementation of the LTU. Taking due note of the explanations provided, the Committee expects that the Government will continue to take any necessary measures, including in the context of further amendments to the LTU, to clarify the application of the quorum requirements and enable unions to freely determine in their statutes or by-laws any alternative means to actual presence (such as proxies or delegations) to meet the required quorum, including in relation to higher level organizations.

Article 3. Right of employers’ and workers’ organizations to organize their activities and formulate their programmes. In its previous comments, the Committee referred to the need to amend section 326(1) of the Labour Law whereby, in the absence of agreement between the parties on the minimum service in an enterprise for the protection of the facility installations and equipment where a strike is taking place, the MLVT is empowered to determine the minimum service in question. The Committee also requested the Government to provide information on the application in practice of section 326(2) of the Labour Law, in particular any example of the sanctions imposed on workers for serious misconduct. The Committee notes that the Government indicates that the MLVT has consulted with the relevant parties on the application of section 326 of the Labour Law in drafting a regulation to determine the minimum services in an enterprise where a strike is taking place. The Committee welcomes the Government’s indication that it will request ILO technical assistance to organize a tripartite consultation on the draft regulation on this matter in 2020. Recalling its previous recommendations, the Committee requests the Government to provide information on any developments in this regard, including as to the application in practice of section 326 of the Labour Law.

The Committee had also noted in its previous comment that: (i) the International Trade Union Confederation (ITUC) denounced, as common practices, the replacement of workers and the granting of injunctions to preclude industrial action, even when all the procedures have been followed by the unions; and that (ii) the DCM observed that, while a number of workers’ organizations claimed that strikes, even when fully meeting legal requirements, were routinely subjected to injunctions and subsequent dismissals and criminalization if nevertheless conducted, the Government and the employers claimed that most, if not all, strikes failed to fully meet the legal requirements. The Government states in its report that: (i) injunctions are issued to protect private properties and prevent the loss of welfare or lives of workers; (ii) injunctions are never issued against strikes properly conducted in accordance with the law, but only if the strike is illegal, so that all striking workers are required to return to work within 48 hours and otherwise are considered as having committed serious misconduct and are subject to dismissal; (iii) due to the lack of effective enforcement of related laws and regulations, the increase in illegal strikes by opportunist trade union leaders for their personal benefit would jeopardize the effort to develop constructive and peaceful industrial relations (as examples, the Government affirms that there were cases of union leaders threatening factory owners with strikes if they did not give in to their unreasonable demands, which the Government considers tantamount to monetary extortion); and (iv) 99 per cent of the strikes do not comply with at least one or more of the legal requirements. The Committee further notes that the ITUC observations include allegations of violent repression of strikes by hired criminals, as well as of mass dismissals of striking workers and of detention of union leaders organizing strike action in the garment sector. The Committee thus observes that both the Government’s reply and the ITUC’s observations confirm the existence of important issues and challenges concerning the legality of the exercise of industrial action in the country. Regretting the lack of progress in this respect, the Committee requests once again the Government to hold a comprehensive tripartite dialogue on the issues raised concerning the legality of the exercise of industrial action, with a view to reviewing existing regulations and their application in practice, and undertaking any necessary measures to guarantee the lawful and peaceful exercise of the right to strike.

Capacity of unions to represent their members. In its previous comments, the Committee had requested the Government to take all necessary measures, in the context of the application of the road map and of the drafting of relevant Prakas (regulations), to ensure that organizations that do not have most representative status (MRS) are not deprived of the essential means to defend the occupational interests of their members, such as making representations on their behalf and representing them in grievances (for example, before the Arbitration Council), including through the benefit derived from their affiliation to higher level organizations. The Committee notes with interest that the Government indicates that in order to avoid any concerns and ensure an adequate understanding: (i) the MLVT issued Prakas No. 303 to clarify that minority unions can represent their members in individual and collective labour disputes not arising out of the collective bargaining agreement; and (ii) section 59 of the LTU has been amended to explicitly provide that minority worker unions can represent their members both in individual and in collective labour dispute settlement not arising out of a collective bargaining agreement. The Committee further notes that the Government provides statistical information on the representation of cases before the Arbitration Council: in 2017 out of 50 collective labour disputes six were represented by a most representative status union, 25 by minority unions and 9 by worker representatives; in 2018 out of 59 collective labour disputes two were represented by a most representative status union, 42 by minority unions and 15 by worker representatives; and from 1 January to 31 May 2019, out of 43 collective labour disputes one was represented by a most representative status union, 30 by minority unions and 12 by worker representatives.

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

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.

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Article 2 of the Convention. Right of workers to establish organizations without previous authorization. Registration requirements. In its previous comment, the Committee had observed that the March 2017 direct contacts mission (DCM) highlighted in its report concerns raised by workers’ organizations in relation to the requirements for acquisition and maintenance of registration and their application in practice, including allegations of arbitrary denial of applications (for example, on the grounds of simple typos) and of introducing through regulations new requirements not set out in the law (such as detailed biographical information about trade union leaders and their families or detailed listing of all workers participating in elections). The Committee requested the Government to take any necessary measures: (i) to ensure that the registration process is conducted swiftly in a simple, objective and transparent manner that does not entail any discretion or prior authorization; and (ii) in broad consultation with workers’ organizations, to remove requirements that, while not indispensable for the registration, may discourage or complicate the registration process, and to amend as needed and assess the application of the Law on Trade Unions (LTU) and its regulations on registration in this respect. The Committee notes that the Government informs that on 13 December 2018 it organized a trade union forum on the implementation of the LTU in order to discuss the challenges concerning trade union registration. As a result, the Ministry of Labour and Vocational Training (MLVT) issued Instruction No. 39/18, directing all departments in charge of registration to facilitate the process as follows: (i) do not require family background information of union leaders; (ii) do not require worker employment cards and national social security fund immediately and allow these documents to be provided within 45 days of the date of receipt of registration; and (iii) allow the administrative staff of federations or confederations to assist with the registration of local unions who are their members. The Government adds that 72 labour inspectors participated in a training on registration procedures. The Government informs that following the adoption of the LTU in 2016 and until the first semester of 2019, the MLVT registered 1,419 new unions. According to the Government, this shows that the number of registrations has multiplied by four (in comparison to the registrations taking place before the LTU – for example in 2015 only 238 new trade unions had been registered) and that the LTU does not restrict freedom of association. Furthermore, the Government indicates that on 31 May 2019, the MLVT issued Instruction No. 53/19, calling the competent departments to revise the required documents for federations and confederations of workers’ unions, eliminating the following requirements: to submit membership cards and workers list (it being sufficient to provide the list of members who paid the membership dues with the employers’ confirmation); to update the unions or federations that are members; to submit any financial report and activity report if the unions or federations have already submitted the reports to their members and copied the MLVT; and to provide any bank account of the unions or federations (in the event that the unions or federations already submitted the bank account to the MLVT). The Committee welcomes the measures undertaken to facilitate the registration process and invites the Government to continue assessing its operation in consultation with workers’ organizations, with a view to considering any additional necessary measures to ensure that registration operates as a simple formality that does not entail any discretion or prior authorization.

Articles 2 and 3. Financial audit and maintenance of registration. The Committee further observes that the draft amendments to the LTU include: (i) a provision that requires organizations not only to present a financial statement to their members but also to have them audited by an independent firm if so requested by either any donor or by a percentage of its members (10 per cent for local unions and 5 per cent for federations or confederations); and, similarly; (ii) a provision on maintenance of registration (draft section 17), which requires not only the submission of annual financial statements and activity reports, but also their audit by an independent audit firm if so requested by either any donor or by a percentage of its members (10 per cent for local unions and 5 per cent for federations or confederations). The Committee considers that these provisions could subject unions to the threat of frivolous audit requests, which would entail an onerous burden to maintain registration. Such audits should only be required if there are serious grounds for believing that the actions of an organization are contrary to its rules or the law (which should not infringe the principles of freedom of association enshrined in the Convention), for example substantiated claims of embezzlement or lack of legitimacy or independence. The Committee requests the Government, in consultation with the representative organizations concerned, to revise the maintenance of registration requirements set out in the draft amendments to the LTU, so that audits to the financial statements and activity reports are only required if there are serious grounds for believing that the actions of an organization are contrary to its rules or to the law.

Quorum and decision-making requirements in union’s by-laws. In its previous comments the Committee had noted the Government’s indication that requirements for union by-laws set out in section 13 of the LTU (setting out an absolute majority quorum for decisions on strike and on amendment to statutes, as well as for general assemblies of unions, and an absolute majority vote for a decision to go on strike) did not require actual presence through face to face meetings, and that unions may opt for any convenient way to convene and determine participation in their meetings, as stipulated in their by-laws, as long as the meeting quorum is met. The Government further indicated that misunderstandings concerning the application of the provision were clarified during the tripartite workshop of 24 March 2017 but that there was room for improvement through further consultations. The Committee notes that in its last report the Government indicates that, since the workshop of 24 March 2017, the MLVT has not received any inquiries relation to the application of section 13 of the LTU and that an annual trade union forum is being conducted to review the implementation of the LTU. Taking due note of the explanations provided, the Committee expects that the Government will continue to take any necessary measures, including in the context of amending the LTU, to clarify the application of the quorum requirements and enable unions to freely determine in their statutes or by-laws any alternative means to actual presence (such as proxies or delegations) to meet the required quorum, including in relation to higher level organizations.

Article 3. Right of employers’ and workers’ organizations to organize their activities and formulate their programmes. In its previous comments, the Committee referred to the need to amend section 326(1) of the Labour Law whereby, in the absence of agreement between the parties on the minimum service in an enterprise for the protection of the facility installations and equipment where a strike is taking place, the MLVT is empowered to determine the minimum service in question. The Committee also requested the Government to provide information on the application in practice of section 326(2) of the Labour Law, in particular any example of the sanctions imposed on workers for serious misconduct. The Committee notes that the Government indicates that the MLVT has consulted with the relevant parties on the application of section 326 of the Labour Law in drafting a regulation to determine the minimum services in an enterprise where a strike is taking place. The Committee welcomes the Government’s indication that it will request ILO technical assistance to organize a tripartite consultation on the draft regulation on this matter in early 2020. Recalling its previous recommendations, the Committee requests the Government to provide information on any developments in this regard, including as to the application in practice of section 326 of the Labour Law.

The Committee had also noted in its previous comment that: (i) the International Trade Union Confederation (ITUC) denounced, as common practices, the replacement of workers and the granting of injunctions to preclude industrial action, even when all the procedures have been followed by the unions; and that (ii) the DCM observed that, while a number of workers’ organizations claimed that strikes, even when fully meeting legal requirements, were routinely subjected to injunctions and subsequent dismissals and criminalization if nevertheless conducted, the Government and the employers claimed that most, if not all, strikes failed to fully meet the legal requirements. The Government states in its report that: (i) injunctions are issued to protect private properties and prevent the loss of welfare or lives of workers; (ii) injunctions are never issued against strikes properly conducted in accordance with the law, but only if the strike is illegal, so that all striking workers are required to return to work within 48 hours and otherwise are considered as having committed serious misconduct and are subject to dismissal; (iii) due to the lack of effective enforcement of related laws and regulations, the increase in illegal strikes by opportunist trade union leaders for their personal benefit would jeopardize the effort to develop constructive and peaceful industrial relations (as examples, the Government affirms that there were cases of union leaders threatening factory owners with strikes if they did not give in to their unreasonable demands, which the Government considers tantamount to monetary extortion); and (iv) 99 per cent of the strikes do not comply with at least one or more of the legal requirements. The Committee further notes that the ITUC observations include allegations of violent repression of strikes by hired criminals, as well as of mass dismissals of striking workers and of detention of union leaders organizing strike action in the garment sector. The Committee thus observes that both the Government’s reply and the ITUC’s observations confirm the existence of important issues and challenges concerning the legality of the exercise of industrial action in the country. Regretting the lack of progress in this respect, the Committee requests once again the Government to hold a comprehensive tripartite dialogue on the issues raised concerning the legality of the exercise of industrial action, with a view to reviewing existing regulations and their application in practice, and undertaking any necessary measures to guarantee the lawful and peaceful exercise of the right to strike.

Capacity of unions to represent their members. In its previous comments, the Committee had requested the Government to take all necessary measures, in the context of the application of the road map and of the drafting of relevant Prakas (regulations), to ensure that organizations that do not have most representative status (MRS) are not deprived of the essential means to defend the occupational interests of their members, such as making representations on their behalf and representing them in grievances (for example, before the Arbitration Council), including through the benefit derived from their affiliation to higher level organizations. The Committee notes with interest that the Government indicates that in order to avoid any concerns and ensure an adequate understanding: (i) the MLVT issued Prakas No. 303 to clarify that minority unions can represent their members in individual and collective labour disputes not arising out of the collective bargaining agreement; and (ii) section 59 of the LTU will be amended to explicitly provide that minority worker unions can represent their members both in individual and in collective labour dispute settlement not arising out of a collective bargaining agreement. The Committee further notes that the Government provides statistical information on the representation of cases before the Arbitration Council: in 2017 out of 50 collective labour disputes six were represented by a most representative status union, 25 by minority unions and 9 by worker representatives; in 2018 out of 59 collective labour disputes two were represented by a most representative status union, 42 by minority unions and 15 by worker representatives; and from 1 January to 31 May 2019, out of 43 collective labour disputes one was represented by a most representative status union, 30 by minority unions and 12 by worker representatives. The Committee requests the Government to provide information on any further progress in this regard, including as to the adoption of the amendment to section 59 of the LTU.

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee takes note of the comments of the Government in reply to the 2016 and 2017 observations from the International Trade Union Confederation (ITUC), 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 390th Report, October–November 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 judgement 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) on December 2018 the MLVT sent a letter to the ILO requesting technical assistance to provide a training course for police forces; and (iii) on 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 Law on Trade Unions (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. The Committee requests the Government to provide a copy of the adopted amendments to the LTU.

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 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 interest that the amendments to the LTU submitted by the Government remove 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 draft amendments submitted still impose literacy requirements on foreign nationals (sections 20 and 21). Moreover, the Committee observes that the draft submitted does not include a proposal to amend section 38, on the election of worker representatives in the enterprise or establishment. As the Committee had noted in its previous comments, this section also presents issues of compatibility with the Convention. Having taken due note of the draft submitted, the Committee recalls its previous comments and expects that, in the context of its ongoing consultations on the amendment of the LTU, the Government will 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 draft amendments to the LTU submitted by the Government retain 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 add 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 draft amendments to the LTU submitted by the Government do not modify the provision in question, and 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 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, which provides 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 interest that the amendments submitted by the Government remove from the LTU the above-mentioned paragraph. The Committee requests the Government to provide a copy of the amendment removing paragraph (c) of section 29 of the LTU.

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 early 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.

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Article 2 of the Convention. Right of workers to establish organizations without previous authorization. Registration requirements. The Committee observes that the direct contacts mission (DCM) highlighted in its report concerns raised by workers’ organizations in relation to the requirements for acquisition and maintenance of registration and their application in practice, including allegations of arbitrary denial of applications (for example, on the grounds of simple typos) and of introducing through Prakas 249 (regulation on registration of worker organizations and employer associations) of new requirements not set out in the law, such as detailed biographical information about trade union leaders and their families or detailed listing of all workers participating in elections. These issues were deemed particularly problematic by unions as the Law on Trade Unions (LTU), under the threat of possible sanction, only allows registered unions to carry out activities. The DCM noted that the Government acknowledged the existence of confusion in relation to the registration process and the need to issue instructions (including to clarify that the registration forms issued were not obligatory) and adequately train the responsible officials. The DCM welcomed the Government’s willingness to address these concerns and encouraged it, in full consultation with the social partners, to amend the registration regulations so as to remove requirements that, while not indispensable for the registration, may discourage or complicate the registration process (such as requests for detailed biographical information of leaders and their families or detailed lists of those participating in elections), to only rely on the minimum and most accessible means to undertake formal verifications in a manner compatible with freedom of association principles, and to clarify to the responsible authorities and workers that the model forms are not compulsory. The Committee takes due note of the Government’s indication that it has held training for officials in charge of implementing the new regulations, as well as unions and employers, and that tripartite consultations have taken place to address concerns and challenges, including so as to issue clarifications on misunderstandings. Conversely, the Committee notes the claim of the International Trade Union Confederation (ITUC) that the new regulations and their implementation have continued to be used to stop trade unions from performing their normal duties, by imposing excessive requirements on the obtaining and maintenance of registration (alluding, for example, to administrative hurdles for minor issues such as grammatical mistakes in the documents – and claiming that a very large percentage of trade unions were not able to meet the requirements to maintain registration). In this respect, the Committee observes that the draft roadmap submitted by the Government to the ILO includes the organization of workshops to review and revise the procedure of union registration. The Committee requests the Government to take any necessary measures: (i) to ensure that the registration process is conducted swiftly in a simple, objective and transparent manner that does not entail any discretion or prior authorization; and (ii) in broad consultation with workers’ organizations, to remove requirements that, while not indispensable for the registration, may discourage or complicate the registration process, and to amend as needed and assess the application of the LTU and its regulations on registration in this respect.

Articles 2 and 3. Quorum and decision-making requirements in union’s by-laws. The Committee notes that the Government indicates that requirements for union by-laws set out in section 13 of the LTU (setting out an absolute majority quorum for decisions on strike and on amendment to statutes, as well as for general assemblies of unions, and an absolute majority vote for a decision to go on strike) do not require actual presence through face to face meetings, and that unions may opt for any convenient way to convene and determine participation in their meetings, as stipulated in their by-laws, as long as the meeting quorum is met. The Government further indicates that misunderstandings concerning the application of the provision were clarified during the tripartite workshop of 24 March 2017 but that there is room for improvement through further consultations. Taking due note of the explanations provided, the Committee expects that the Government will continue to take any necessary measures to clarify the application of the quorum requirements and enable unions to freely determine in their statutes or by-laws any alternative means to actual presence (such as proxies or delegations) to meet the required quorum, including in relation to higher level organizations.

Article 3. Right of employers’ and workers’ organizations to organize their activities and formulate their programmes. In its previous comments, the Committee referred to the need to amend section 326(1) of the Labour Law whereby, in the absence of agreement between the parties on the minimum service in an enterprise for the protection of the facility installations and equipment where a strike is taking place, the Ministry in charge of labour is empowered to determine the minimum service in question. The Committee also requested the Government to provide information on the application in practice of section 326(2) of the Labour Law, in particular any example of the sanctions imposed on workers for serious misconduct. In its reply, the Government states that it is still working on the matter and seeking the technical assistance of the Office. The Committee requests the Government to provide information on any progress in this regard.

The Committee notes that the ITUC in its observations denounces, as common practices, the replacement of workers and the granting of injunctions to preclude industrial action, even when all the procedures have been followed by the unions. It also notes that the DCM observed that, while a number of workers’ organizations claimed that strikes, even when fully meeting legal requirements, were routinely subjected to injunctions and subsequent dismissals and criminalization if nevertheless conducted, the Government and the employers claimed that most, if not all, strikes failed to fully meet the legal requirements. The Committee requests the Government to hold a comprehensive tripartite dialogue on the issues raised concerning the legality of the exercise of industrial action, with a view to reviewing existing regulations and their application in practice, and undertaking any necessary measures to guarantee the lawful and peaceful exercise of the right to strike.

Capacity of unions to represent their members. The Committee notes that the DCM: (i) observed that the LTU excluded unions not enjoying a most representative status from representing their members in any collective matters and recalled that, while most representative unions could enjoy exclusive bargaining rights, minority unions should be able to represent their members in grievances within the enterprise or in dispute settlement procedures, including before the Arbitration Council (AC); (ii) observed with concern how this provision of the LTU had contributed to an important decline in the number of cases submitted to the AC since the entry into force of the LTU; (iii) observed that the LTU limited the capacities of higher level worker’ organizations to directly represent workers; and (iv) welcomed the Government’s indication that it is in the process of addressing the issues raised concerning the recognition of most representative status to unions, including by enacting the necessary regulations, and that it would reconsider the role afforded to minority unions. The Committee observes that similar concerns are raised by the ITUC in its observations, denouncing that the new regulations have precluded minority unions from representing their members in a dispute. The Committee further notes that the Government states that, through tripartite consultations, it is in the process of drafting Prakas (regulations) on the most representative status of a trade union, and that the draft roadmap includes the drafting of Prakas for tripartite review with a view to providing rights to minority unions to represent their members in collective disputes. While acknowledging that under the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), most representative unions may be recognized as having exclusive collective bargaining rights, the Committee requests the Government to take all necessary measures, in the context of the application of the roadmap and of the drafting of relevant Prakas (regulations), to ensure that organizations that do not have most representative status are not deprived of the essential means to defend the occupational interests of their members, such as making representations on their behalf and representing them in grievances (for example, before the Arbitration Council), including through the benefit derived from their affiliation to higher level organizations. The Committee requests the Government to provide information on any progress in this regard.

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes the observations of the International Organisation of Employers (IOE), received on 1 September 2017.

The Committee takes note of the comments of the Government in reply to the 2016 observations from the International Trade Union Confederation (ITUC), which denounced that a large number of trade union leaders and activists had been charged with criminal offences for union activities since 2014, as well as that an increasing number of injunctions and requisition orders against trade unions and workers had been granted in labour disputes to restrict trade union activities and industrial action. The Government states that it is reviewing each case to determine its legal basis and verify whether it has been settled. As to cases under court proceedings the Government indicates that it will report on the outcome once it receives final judgments. The Committee further notes the observations made by the ITUC received on 1 September 2017 on matters examined in this comment, as well as alleging a number of violations of the Convention in practice, building on its previous observations and denouncing the criminalization of trade union activities through harassing lawsuits, arrests and long-pending trials before courts whose independence is questioned. The ITUC further alleges the use of short-term contracts to terminate employment of trade union leaders and members so as to weaken active trade unions. In addition, according to the ITUC, the zero draft of the Minimum Wages Law (2016) contains provisions which prohibit legitimate trade union activities. The Committee notes with concern the seriousness of these allegations and requests the Government to provide its comments on the 2016 and 2017 ITUC observations, in particular on the specific cases mentioned and the outcome of any pending court proceedings, as well as on the allegations of extended use of short-term contracts to undermine freedom of association, and of provisions in the draft law on the minimum wage criminalizing legitimate trade union activities concerning the discussion and setting of the minimum wage.

The Committee also takes note of the report of the direct contacts mission (DCM) that visited the country from 27 to 31 March 2017, following a request by the Conference Committee on the Application of Labour Standards in June 2016.

Follow-up to the discussion of the Committee on the Application of Standards (International Labour Conference, 106th Session, June 2017)

The Committee notes the discussion that took place in the Conference Committee in June 2017 concerning the application of the Convention by Cambodia. The Committee notes that, in its conclusions, the Conference Committee requested the Government to: (i) ensure that freedom of association can be exercised in a climate free of intimidation and violence against workers, employers and their respective organizations; (ii) provide the reports of the three committees charged with investigations into the murders of, and violence perpetrated against, trade union leaders to the Committee of Experts, and ensure that the perpetrators and instigators of the crimes are brought to justice; (iii) ensure that acts of anti-union discrimination are swiftly investigated and that, if verified, adequate remedies and dissuasive sanctions are applied; (iv) keep under review the Trade Union Law, closely consulting employers’ and workers’ organizations, with a view to finding solutions that are compatible with the Convention; (v) ensure that workers are able to register trade unions through a simple, objective and transparent process; (vi) ensure that teachers, civil servants, domestic workers and workers in the informal economy are protected in law and practice consistent with the Convention; (vii) ensure that all trade unions have the right to represent their members before the Arbitration Council; (viii) complete, in consultation with workers’ and employers’ organizations, the proposed legislation and regulations on labour disputes, in conformity with the Convention, so as to ensure that the labour dispute settlement system has a solid legal basis that allows it to fairly reconcile the interests and needs of workers and employers involved in the disputes; and (ix) develop a roadmap to define time-bound actions in order to implement the conclusions of the Conference Committee.

The Committee notes the Government’s indication that the Ministry of Labour and Vocational Training convened a tripartite meeting on 25 August 2017 to discuss actions to implement the conclusions of the Conference Committee and that, as a result, a roadmap was being prepared in consultation with the social partners. After the submission of its report the Government shared a draft roadmap with the ILO for its review and technical assistance. The Committee expects that, through comprehensive social dialogue and with the assistance of the ILO, the roadmap will soon be finalized to give full effect to the conclusions of the Conference Committee, and in this respect draws the Government’s attention to the matters raised below.

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 had previously noted the Government’s indication that an Inter-Ministerial Commission for Special Investigations was established in August 2015 to ensure thorough and expeditious investigations of these criminal cases, and that a tripartite working group attached to the Secretariat of the Commission was established thereafter in order to allow the employers’ and workers’ organizations to provide information in relation to the investigations and to provide their feedback on the findings of the Commission. The Committee notes that the Government indicates that it has been unable to expedite the investigations since it has been facing challenges, including the lack of collaboration from the victims’ families, but that it is committed to undertaking all necessary measures and will continue undertaking its utmost efforts to conclude the investigations and bring the perpetrators and the instigators to justice. The Committee notes from the conclusions of the Committee on Freedom of Association in its examination of Case No. 2318 (see 383rd Report, November 2017) that the National Police Commissariat created an investigation taskforce in 2015, that the Inter-Ministerial Commission held a second meeting in January 2017 and that no progress is reported as to the operation of the tripartite working group. The Committee must express its deep concern with the lack of concrete results concerning the investigations. Recalling the need to conclude the investigations and to bring to justice the perpetrators and the instigators of these crimes in order to end the prevailing situation of impunity in the country with regard to violence against trade unionists, the Committee urges the competent authorities to take all necessary measures to expedite the process of investigation, and firmly requests the Government to keep the social partners duly informed of developments and to report on concrete progress.

Incidents during a demonstration in January 2014. In its previous observations, the Committee requested the Government to provide information on any conclusions and recommendations reached by the three committees set up following the incidents that occurred during the strikes and demonstrations of 2–3 January 2014, which resulted in serious violence and assaults, death and arrests of workers as well as alleged procedural irregularities in their trial. The Committee had also noted that the ITUC maintained that the committees established to investigate the incidents were not credible, that an independent investigation into the events was still necessary and that those responsible for the acts of violence – which led to the death of five protesters and the wrongful arrest of 23 workers – must be held accountable. The Committee notes that the Government states that the conclusions of the three committees were submitted to the competent courts for further court proceedings and that the Government will not be able to provide them until they become available after conclusion of the court proceedings. The Committee also notes that the Committee on Freedom of Association Case No. 3121 (see 383rd Report, November 2017) urged the Government: (i) to clarify whether the specific allegations of killings, physical injury and arrest of protesting workers following the January 2014 demonstrations are being investigated in the context of the mentioned fact-finding committees and, if so, to provide the specific findings of the committees in this regard; and (ii) should the ongoing investigations not cover this issue, to institute an independent inquiry into the serious allegations without delay and to inform it of the outcome and the measures taken as a result. The Committee further notes that the DCM, recalling the importance of providing assistance and training to police forces with a view to ensuring their full respect for trade union rights, reminded the Government that it could avail itself of the technical assistance of the Office in this regard, 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, 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, encourages 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.

Legislative issues

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee notes that the Government states that freedom of association is guaranteed to all workers through two pieces of legislation: (i) the Law on Trade Unions (LTU), applicable to the private sector – including domestic workers 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 judges, teachers and other civil servants – as well as domestic workers and workers in the informal economy that do not meet the requirements of the LTU. The Government also indicates that further measures will be undertaken through the roadmap to implement the conclusions of the Conference Committee. 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 to civil servants’ associations the 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, or 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. While noting that the Government indicated to the DCM that registration can only be rejected if it endangers or adversely affects public safety or public order, the Committee must recall that these grounds afford the authorities a discretionary power that is incompatible with Article 2 of the Convention and emphasizes in this regard the 2017 Conference Committee conclusion that the registration process must be simple, objective and transparent. The Committee further notes that the DCM observed in its conclusions 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. In addition, the Committee notes the ITUC 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. 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 in the context of the application of the roadmap to give effect to the conclusions of the Conference Committee, 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. The Committee notes that the Government states that the requirements of literacy and age are indispensable to ensure the sound and effective operation of worker unions. It also indicates that a minor who is deemed emancipated and with soundness of mind, as stipulated under the Civil Code, will be able to have full legal capacity and be treated as having the minimum legal age (18 years old). The Committee welcomes the Government’s indication that further discussions with the social partners will be conducted as recommended by the Committee. As to the minimum age and the literacy criteria, the Committee recalls once again that it considers to be incompatible with the Convention the requirements that candidates for trade union office should have reached the age of majority, or be able to read and write (see the 2012 General Survey on the fundamental Conventions, paragraph 104). Duly noting that the Government indicates that the civil code emancipation procedure already provides for the possibility to recognize full legal capacity to minors, the Committee considers that the Government could remove the age of majority requirement from the LTU for minors who have reached the statutory minimum age for wage employment (persons of 15 years of age, under section 177 of the Labour Law). Furthermore, the Committee recalls that it considers that conviction for an act the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from trade union office (see General Survey, op. cit., paragraph 106). The Committee once again requests the Government to, in the context of its ongoing consultations on the application of the LTU, take the necessary measures to amend sections 20, 21 and 38 of the LTU to: (i) guarantee the right of minors who have reached the statutory minimum age for wage employment to be candidates for trade union office; (ii) to remove the requirement to read and to write Khmer from the eligibility criteria; and (iii) to ensure full respect with the abovementioned principle concerning disqualification from trade union office because of criminal offences.

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 notes that the Government states that the provision is not contrary to the Convention as it only contemplates the automatic dissolution of the union resulting from the closure of its enterprise or establishment – and it does not constitute a decision of the administrative authority. The Committee observes in this regard that a union may have a legitimate interest to continue to operate after the dissolution of the enterprise concerned (for example, to defend any claims of its members). 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 the Government to take the necessary measures to amend section 28 of the LTU accordingly by 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. The Committee notes that the Government states that the provision aims to ensure freedom of association as well as democracy and the interests of union members and recalls that only the Court has the full power to dissolve any trade union upon receiving a complaint. The Committee recalls once again that the manner in which members may request dissolution should be left to the organization’s by-laws. The Committee 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 amend paragraph (c) of section 29, which provides 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 notes that the Government states that: (i) the provision does not refer to any personal or individual offence of leaders or persons responsible for the administration of the union; and (ii) only offences committed by leaders and persons responsible for the administration on behalf of the trade union will lead to the dissolution of the trade union (in other words, the trade union itself must be held responsible for the serious offence committed). The Committee must recall 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 requests the Government to take the necessary measures to amend section 29 of the LTU by removing its paragraph (c).

Application of the Convention in practice

Independent adjudication mechanisms. The Committee notes that the Government indicates that a draft of the Law on Procedure of Labour Disputes Judgement was completed in August 2017 and that, with the support from the ILO, a tripartite consultative workshop is to be conducted to discuss the draft and receive comments with a view to improving it further and with a view to submitting the draft law to Parliament for adoption by the end of 2017. The Government clarifies that the draft law also aims to strengthen and empower the Arbitration Council (AC). The Government states that it shares with social partners a recognition of the effectiveness of the AC, and that it intends to promote its role, including by empowering it to hear individual disputes. In this respect, the Committee takes note of the recommendations of the DCM, which, acknowledging the Government’s commitment to strengthen the AC, trusted that all necessary measures would be undertaken to enable the AC to continue to be easily accessible and to play its important role in relation to the handling of collective disputes and to ensure that its awards, when binding, are duly enforced (the DCM had observed that workers’ organizations claimed that often the awards of the AC, even when legally binding, were not followed – a concern that is reiterated in the latest observations of the ITUC). The Committee further notes the serious concerns raised by the ITUC, as well as by national workers’ organizations to the DCM, on the alleged lack of independence of the judiciary and its use to criminalize and curtail legitimate trade union activities. In this respect, the Committee recalls that one of the principal findings of the direct contracts mission, which visited the country in 2008, concerned the lack of an effective and impartial judiciary. The 2008 mission noted, in particular, that the judicial system’s ability to discharge its mandate was compromised by lack of capacity, as evidenced by the fact that court decisions and proceedings were often unrecorded and unpublished, and that the judiciary was subject to political interference and has been unable to exercise its functions in an impartial and independent manner (see Case No. 2318, 351st Report, paragraph 250). The mission referred to the need to take the necessary steps to ensure the independence and effectiveness of the judicial system, including through capacity-building measures and the institution of safeguards against corruption. The Committee expects that the Government will take all necessary measures to complete expeditiously the adoption of the Law on Labour Procedure of the Labour Court, in full consultation with the social partners, in order to ensure 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, through the measures outlined above. The Committee welcomes the Government’s commitment to strengthen the AC and trusts that the Council will continue to remain easily accessible and to play its important role in the handling of collective disputes, and that any necessary measures will be undertaken to ensure that its awards, when binding, are duly enforced.

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

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

The Committee notes that the Law on Trade Unions (LTU) was promulgated on 17 May 2016.

Article 2 of the Convention. Right of workers to establish organizations without previous authorization. Section 13 of the LTU: Requirements for statutes. The Committee notes that this section sets detailed requirements to include in union statutes. It recalls that national legislation should only lay down formal requirements respecting trade union constitutions, and that provisions which go beyond these formal requirements may constitute interference contrary to the right of workers’ organizations to draw up their constitutions and rules by virtue of Article 3 of the Convention. The Committee is of the view that a number of requirements in section 13, detailing specific quorums or ballot for certain decisions, go beyond formal requirements and the determination of these matters should be left to the decision of the trade union itself. The Committee requests the Government to consult with the social partners with a view to removing these requirements which unduly restrict the right to draw up constitutions and rules without interference from the public authorities.

Article 3. Right to elect representatives freely. Section 20 of the LTU: Requirements for leaders, managers, and those responsible for the administration of unions. Under this provision, potential candidates – either nationals or foreign nationals – should meet a minimum age requirement (18), minimum literacy requirements and make a declaration that they have never been convicted for any criminal offence. With regard to the minimum age and the literacy criteria, the Committee recalls that it considers to be incompatible with the Convention the requirements that candidates for trade union office should have reached the age of majority, or be able to read and write (see the 2012 General Survey on the fundamental Conventions, paragraph 104). Consequently, the Committee requests the Government to take the necessary measures to amend section 20 of the LTU to guarantee the right of minors who have reached the statutory minimum age for wage employment (persons of 15 years of age, under section 177 of the Labour Law) to be candidates for trade union office, as well as to remove the requirement to read and to write Khmer from the eligibility criteria. Furthermore, the Committee recalls that it considers that conviction for an act the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from trade union office (see the 2012 General Survey on the fundamental Conventions, paragraph 106). In this regard, the Committee observes that the Committee on Freedom of Association, in the recent examination of a case, requested the Government to amend section 20 of the LTU and referred this legislative aspect to the Committee (see case No. 3121, 380th Report, paragraph 142). The Committee requests the Government to ensure full respect for this principle by taking the necessary measures to amend section 20 of the LTU accordingly.

Section 21 of the LTU: Requirements for leaders, managers, and those responsible for the administration of employers’ associations. The Committee draws the Government’s attention to the fact that amendments requested above for section 20 concerning trade union office also apply, as relevant, to section 21 concerning employers’ associations office, which contains similar provisions. The Committee requests the Government to take the necessary measures to amend section 21 of the LTU according to the abovementioned principles.

Section 38 of the LTU: Eligibility to vote and to stand as a candidate for the representative election. The Committee draws the Government’s attention to the fact that the amendments requested above for section 20 concerning trade union office also apply to section 38 concerning eligibility criteria to vote and to stand as a candidate for representative elections, which contains similar provisions. The Committee requests the Government to take the necessary measures to amend section 38 of the LTU according to the abovementioned principles on minimum age and literacy requirements.

Article 4. Dissolution of representative organizations. Section 28 of the LTU: Dissolution of unions or employers’ associations. Paragraph 2 of this provision provides that a union is automatically dissolved in the event of a complete closure of the enterprise or establishment. 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 the Government to take the necessary measures to amend section 28 of the LTU accordingly by removing its paragraph 2.

Section 29 of the LTU: Grounds to request dissolution by Court. According to this provision, any party concerned or 50 per cent of the total of members of the union or the employer association have the right to file a complaint to the Labour Court to request a dissolution. The Committee considers that the manner in which members may request dissolution should be left to the organization’s by-laws. The Committee 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. Moreover, according to paragraph (c) of section 29, 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. In this regard, the Committee is of the view 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, 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 from all possibility of action. The Committee requests the Government to take the necessary measures to amend section 29 of the LTU by removing its paragraph (c).

The Committee trusts that the Government will take fully into account its comments on the LTU and, in consultation with the social partners, take swift action to amend the law accordingly.

Right of employers’ and workers’ organizations to organize their activities and formulate their programmes. In its previous comments, the Committee referred to the need to amend section 326(1) of the Labour Law whereby, in the absence of agreement between the parties on the minimum service in an enterprise where a strike is taking place for the protection of the facility installations and equipment, the ministry in charge of Labour is empowered to determine the minimum service in question. The Committee also requested the Government to provide information on the application in practice of section 326(2) of the Labour Law, in particular any example of the sanctions imposed on workers for serious misconduct. In its reply, the Government states that it is seeking the technical assistance of the Office in order to work on the draft Prakas to clearly resolve the concerns arising from these provisions. The Committee requests the Government to provide information on any progress in this regard.

Anti-corruption law. The Committee had requested the Government to provide a copy of the Act on Anti-Corruption, as adopted, as well as information on the activities of the anti-corruption unit, its strategic plan and any other relevant documentation. The Government reiterates that the Act will be transmitted once translated into English and refers to information publicly available on the activities of the anti-corruption unit.

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

The Committee notes the observations of the International Organisation of Employers (IOE), received on 1 September 2016, which are of a general nature. The Committee further notes the observations made by the International Trade Union Confederation (ITUC) received on 1 September 2016, which denounce that a large number of trade union leaders and activists have been charged with criminal offences for union activities since 2014, as well as that an increasing number of injunctions and requisition orders against trade unions and workers have been granted in labour disputes to restrict trade union activities and industrial actions. At least 114 injunctions and requisition orders have allegedly been granted since 2014, in particular in the garment industry and the tourism sector. The ITUC further protests against the persistent use of violence by the police against workers during protest actions. 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 note of the comments of the Government in reply to the previous allegations from the ITUC, Education International (EI) and the National Educators’ Association for Development (NEAD) of violence against trade unionists, harassing lawsuits against trade union leaders and activists, impediments to the registration of new independent trade unions, and intimidation against teachers joining trade unions (in particular police intimidation during the national Congress of the NEAD in September 2014). The Committee observes that, while it continues to object to the allegation of blockage to the registration of new trade unions, the Government indicates that most cases presented previously have been resolved through the existing legal procedures and that the competent authorities have been working closely with all the parties concerned to ensure full compliance with the national laws and regulations and the Convention.

Follow-up to the discussion of the Committee on the Application of Standards (International Labour Conference, 105th Session, May–June 2016)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in June 2016 concerning the application of the Convention by Cambodia. The Committee notes that, in its conclusions, the Conference Committee requested the Government to: (i) ensure that freedom of association can be exercised in a climate free of intimidation and without violence against workers, trade unions or employers, and act accordingly; (ii) ensure that the Trade Union Law is in full conformity with the provisions of the Convention and engage in social dialogue, and with the technical assistance of the ILO; (iii) ensure that teachers and civil servants are protected in law and practice consistent with the Convention; (iv) undertake full and expeditious investigations into the murders of and violence perpetrated against trade union leaders and bring the perpetrators as well as the instigators of these crimes to justice; and (v) ensure that the Special Inter-Ministerial Committee keeps the national employers’ and workers’ organizations informed on a regular basis of the progress of its investigations. The Committee also notes that the Conference Committee invited the Government to accept a direct contacts mission before the next International Labour Conference in order to assess progress. The Committee welcomes the Government’s acceptance of the direct contacts mission and trusts that the mission will take place in the near future.

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, Ros Sovannareth and Hy Vuthy, the Committee had previously noted the Government’s indication that a special Inter ministerial Commission for Special Investigations was established in August 2015 to ensure thorough and expeditious investigations of these criminal cases. The Committee notes from the Government’s report that the Inter ministerial Commission for Special Investigations held its first meeting on 9 August 2016 and adopted measures with regard to its functioning, which include the use of electronic communication for reporting on progress made by each member of the Commission and regular meetings every three months to review progress made for each case. With regard to its previous recommendation that the Special Inter-ministerial Commission keeps the national employers’ and workers’ organizations informed on a regular basis of the progress of its investigations, the Committee notes from the conclusions of the Committee on Freedom of Association in its examination of Case No. 2318 (380th Report, November 2016) that a tripartite working group attached to the Secretariat of the Commission has also been established in order to allow the employers’ and workers’ organizations to provide information in relation to the investigation and to provide their feedback on the findings of the Commission. While the Committee duly notes the measures described, it must express its concern with the lack of concrete results concerning the investigations requested despite the time that has elapsed since the setting up of the Inter-ministerial Commission. Recalling the need to conclude the investigations and to bring to justice the perpetrators and the instigators of these crimes in order to end the prevailing situation of impunity in the country with regard to violence against trade unionists, the Committee urges the competent authorities to take all necessary measures to expedite the process of investigation, and firmly requests the Government to keep the social partners duly informed of developments and to report on concrete progress in this regard to the direct contacts mission.

Incidents during a demonstration in January 2014. In its previous observation, the Committee requested the Government to provide information on any conclusions and recommendations reached by the three committees set up following the incidents that occurred during the strikes and demonstrations of 2–3 January 2014 which resulted in serious violence and assaults, death, and arrests of workers as well as alleged procedural irregularities in their trial. In its report, the Government reiterates that the strike action turned violent and that the security forces had to intervene in order to protect private and public properties, and to restore peace. The Government further indicates that the three committees have been transformed and assigned more specific roles and responsibilities: (i) the Damages Evaluation Commission concluded that the total amount of damages is not less than US$75 million including damages on public and private properties in Phnom Penh and some other provinces; (ii) the Veng Sreng Road Violence Fact-Finding Commission concluded that the incident was a riot instigated by some politicians by using the minimum wages standards as the propaganda, and did not fall under the definition of a strike action under international labour standards since demonstrators blocked public streets at midnight, hurled burning bottles of gasoline and rocks at the authorities and destroyed private and public properties; and (iii) the Minimum Wages for Workers in Apparel and Footwear Section Study Commission was transformed into the existing Labour Advisory Committee, which is tripartite and advises on promoting working conditions including minimum wage setting. The Committee notes, however, that ITUC maintains that the committees established to investigate into the incidents were not credible, that an independent investigation into the events is still necessary and that those responsible for the acts of violence – which led to the death of 5 protesters and the wrongful arrest of 23 workers – must be held accountable. Noting the divergent views expressed by the Government and the ITUC on the handling of these incidents, the Committee must express its deep concern at the acts of violence which resulted in the death, injury and arrest of protesters following originally a labour dispute demonstration, and the absence of information from the Government in this regard. The Committee, 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, urges the Government to provide specific information, as well as the findings of the Commissions, with regard to the circumstances leading to the death, injury and alleged wrongful arrests of protesters, and on any measures taken as a result of the conclusions reached by the three mentioned Commissions.

Legislative issues

Law on Trade Union (LTU). In its previous observation, while noting that the Government had further revised the draft Trade Union Law and had submitted it to the Council of Ministers, the Committee expressed the hope that the draft law would be adopted in the very near future and would be in full conformity with the provisions of the Convention. The Committee notes the Government’s indication that the LTU was promulgated on 17 May 2016 and that during the drafting period from 2008 to 2016, a series of bipartite, tripartite, multilateral and public consultations have been conducted, and the technical comments of the ILO have been integrated in the final draft. The Government however points out that despite all efforts the Law does not provide full satisfaction to the social partners: (i) the employers are not satisfied with the minimum threshold before a trade union can be established; and (ii) the workers are dissatisfied with the scope of the law, which excludes civil servants. The Committee further notes the concerns raised by the ITUC on a number of provisions of the Law on Trade Union. The Committee requests the Government to provide its comments to the issues raised by the ITUC.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. Section 3 of the LTU: Scope of the law. Noting that under this section, the law covers all persons who fall within the provisions of the labour law, the Committee requests the Government to indicate how the judges of the judiciary and domestics or household servants, who are excluded from the scope of the labour law by virtue of its section 1, are fully ensured their rights under the Convention. Moreover, the Committee requests the Government to indicate whether workers in the informal economy fall under the scope of the LTU or how they are ensured their trade union rights under the Convention.

The Committee recalls that the right to establish and join occupational organizations should be guaranteed for all public servants and officials, irrespective of whether they are engaged in the state administration at the central, regional or local level, are officials of bodies which provide important public services or are employed in state-owned economic undertakings (see General Survey of 2012 on the fundamental Conventions, paragraph 64). The Committee notes the Government’s indication that civil servants appointed to a permanent post in the public service are ensured their freedom of association rights through section 36 of the Common Statutes for Civil Servants, and that teachers in particular are ensured these rights through section 37 of the Law on Education. The Committee understands that these provisions refer to the rights of association under the Law on Associations and Non-Governmental Organizations. Following its review of this law, the Committee considers that some provisions contravene freedom of association rights of civil servants under the Convention, by subjecting the registration of their associations to the authorization of the Ministry of Interior which is contrary to the right to establish organizations without previous authorization under Article 1 of the Convention. Moreover, this law lacks provisions recognizing to civil servants’ associations the 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, or the right to affiliate to federations or confederations, including at the international level. Therefore, 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 is making other comments on the LTU in a direct request and trusts that the Government will address them, in full meaningful consultation with the social partners and taking into account their observations, in order to bring the law into line with the provisions of the Convention. In this regard the Committee recalls to the Government the possibility to continue to benefit from the technical assistance of the Office. Moreover, the Committee requests the Government to report on the implementation of the LTU.

Application of the Convention in practice

Independence of the judiciary. In its previous observation, the Committee requested the Government to indicate any progress on the drafting of a guideline on the operation of the Labour Court and the Labour Chamber, and to provide information on the progress made in their establishment and operation. In its reply, the Government indicates that, with the technical assistance and financial support of the Office, the Law on Labour Procedure of the Labour Court is still in the drafting process. The Government has benefited from experiences from other countries, such as Singapore, Japan and Australia, and expects to consult the social partners on the draft law at the end of the year to reflect the needs for a labour dispute settlement system which is quick, free and fair. The Committee trusts that the Government will take all necessary measures to complete expeditiously the adoption of the Law on Labour Procedure of the Labour Court, in full consultation with the social partners, in order to ensure 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.

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

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Article 3 of the Convention. Right to elect representatives freely. In its previous comments, the Committee requested the Government to take into account, in the framework of the drafting of the Trade Union Law, the principles that conviction on account of offences, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the exercise of trade union functions, should not constitute grounds for disqualification from holding trade union office; and that organizations’ right to elect representatives in full freedom should not be infringed by preventing qualified persons from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons among their own ranks. The Committee notes that, in its reply, the Government specifies that workers who have seniority of at least three months in the enterprise/establishment and have attained an educational level of at least being able to read and write Khmer shall be eligible to stand as candidates for the position of shop stewards. In this regard, in its 2012 General Survey on the fundamental Conventions, paragraph 104, the Committee considers to be incompatible with the Convention the requirements that candidates for trade union office should have reached the age of majority, or be able to read and write. Moreover, the Committee notes the Government’s indication that foreigners could be eligible to stand as a candidate only if they reside in the country in conformity with the provisions of the Immigration Act until the end of the term solicited.

Right of employers’ and workers’ organizations to organize their activities and formulate their programmes. In its previous comments, the Committee requested the Government to take measures to amend the law so as to ensure that any disagreement concerning the establishment of minimum services is settled by an independent body having the confidence of all the parties to the dispute, and not the executive or administrative authority. The Government refers to section 329 of the Labour Law on disputes concerning the qualification for an essential service which shall be settled by the Labour Court, or in the absence of a Labour Court, by a common court. The Committee however recalls that its comments rather refer to the need to amend section 326(1) of the Labour Law whereby in the absence of agreement between the parties on the minimum service, the ministry in charge of Labour is empowered to determine it. Furthermore, with regard to section 326(2) of the Labour Law, which provides that workers who are required to provide minimum service and who do not appear for such work, are considered guilty of serious misconduct, the Committee notes that the Government is of the view that this provision does not need to be amended as it is consistent with the principles of freedom of association.

The Committee trusts that the Government will bear in mind the principles set out above when finalizing the Trade Union Bill. The Committee requests the Government to provide information on the application in practice of section 326(2) of the Labour Law, in particular any example of the sanctions imposed on workers for serious misconduct.

Anti-corruption law. The Committee had requested the Government to provide a copy of the Act on Anti-Corruption, as adopted, as well as information on the activities of the anti-corruption unit, its strategic plan and any other relevant documentation. The Committee notes the Government’s indication that a copy of the Act, as well as the other documents will be transmitted once translated into English.

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee notes the observations of the International Organisation of Employers (IOE), received on 1 September 2015, which are of a general nature. The Committee further notes the observations made by the International Trade Union Confederation (ITUC) received on 1 September 2015, which refer in particular to violence against trade unionists during strike action or during May Day rally, harassing lawsuits against trade union leaders and a recurrent blockage on registration of new independent unions. In its observations, the ITUC also comments on the draft Trade Union Law. The Committee further notes the observations made by Education International (EI) and its affiliate, the National Educators’ Association for Development (NEAD), in a communication received on 28 September 2015 referring to police intimidation during the national Congress of the NEAD in September 2014. The Committee requests the Government to provide its comments on the observations submitted by the ITUC, EI and the NEAD.

The Committee also notes the observations of the Cambodia Independent Teachers’ Association (CITA) received on 4 August 2015, raising concern about the newly adopted Law on Associations and Non-Governmental Organizations. The Committee expresses its particular concern at a number of provisions in this law which would appear to violate the fundamental rights of teachers under the Convention. The Committee urges the Government to provide detailed information on the measures taken or envisaged to ensure that teachers and civil servants, who are not covered by the general trade union legislation, are fully ensured their rights under the Convention.

The Committee takes note of the comments of the Government in reply to the previous observations from the ITUC, EI and the NEAD with regard to arrest and detention of workers involved in demonstrations, impediments to the registration of new independent trade unions, and intimidation against teachers joining trade unions. The Committee observes that the Government objects to most of the allegations and issues raised. In view of the divergent information provided by the workers’ organizations and the Government, the Committee is bound to recall that freedom of association can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of workers’ and employers’ organizations, and it is for the Government to ensure that this principle is respected.

Murders of trade unionists. In its previous observation, the Committee had urged the Government to ensure that thorough and independent investigations into the murders of trade union leaders Chea Vichea, Ros Sovannareth and Hy Vuthy were carried out expeditiously. In relation to the murder of Ros Sovannareth, the Government reiterates that this case had already been concluded following the arrest and sentencing of Thach Saveth, also known as Chan Sopheak. He was sentenced to 15 years of imprisonment on 15 February 2005 for premeditated murder and is currently serving his term in prison. In this regard, the Committee notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2318 recalling that Thach Saveth was convicted of the murder of Ros Sovannareth in trials that were fraught with judicial irregularities and an absence of due process, and requesting the Government to investigate and indicate whether Thach Saveth was effectively given the opportunity to appeal against the court ruling and, if so, whether he had exercised his right to appeal (see 376th Report, paragraph 218). The Committee notes the Government’s indication that a special Inter-ministerial Committee was established in August 2015 to ensure thorough and expeditious investigations of these criminal cases. The Committee once again requests the Government to ensure full and expeditious investigations into the murders of the abovementioned trade union leaders and to bring, not only the perpetrators, but also the instigators of these heinous crimes, to justice so as to bring to an end the prevailing situation of impunity, and hopes that it will soon be able to report progress in this regard. The Committee requests the Government to ensure that the Special Inter-ministerial Committee keeps the national employers’ and workers’ organizations informed on a regular basis of the progress of its investigations with a view to promoting social dialogue and putting an end to the climate of impunity that exists surrounding the acts of violence against trade unionists.

Trade union rights and civil liberties. In its previous observation, the Committee urged the Government to investigate into the events of 2–3 January 2014 where strikes and demonstrations in the context of minimum wage fixing resulted in serious violence and assaults, death, and arrests of workers as well as alleged procedural irregularities in their trial. In its report, the Government reiterates that the strike action turned violent and that the security forces had to intervene in order to protect private and public properties, and to restore peace. The Government indicates that three committees had been set up following the incidents: the damages evaluation committee, the Veng Sreng road violence fact-finding committee and the minimum wages for workers in apparel and footwear sector study committee. The Committee requests the Government to provide information on any conclusions and recommendations reached by these committees as regards the incidents of January 2014, as well as any follow-up measures.

Further to its previous comments, while taking due note of the details provided on the duties and mission of the strike–demonstration settlement committee, the Committee requests the Government to report on its work.

Independence of the judiciary. In its previous observation, the Committee requested the Government to indicate any capacity building or other measures undertaken in relation to the newly adopted laws on the status of judges and prosecutors and on the organization and functioning of the courts. The Government provides information on the organization of a national training workshop in December 2014 attended by over 500 persons representing all relevant stakeholders, as well as regular training for the officials of the provincial/municipal courts conducted through the Technical Committee on the Legal and Judicial Reform and by the General Directorate of Court Administration. The Government further explains that labour disputes would be settled by a Specialized Labour Court at the Court of first instance and Chambers of Labour at the higher courts (Court of Appeal and Supreme Court). The Government concludes by identifying the need to develop a guideline on the operation of the Labour Court and the Labour Chamber. The Committee requests the Government to indicate any progress on the drafting of the guideline on the operation of the Labour Court and the Labour Chamber, and to provide information on the progress made in their establishment and operation. The Committee recalls once again the urgent need to ensure the effectiveness of the judicial system as a safeguard against impunity, and an effective means to protect workers’ rights during labour disputes.

Draft Trade Union Law. In its previous observation, while noting the indication that the draft Trade Union Law was expected to be adopted by early 2015, the Committee urged the Government to expedite the adoption of legislative amendments that take into account all its comments ensuring the rights under the Convention to all workers, whether through the Trade Union Law or other relevant legislative measures. In this regard, the Committee notes that the Government reiterates its commitment to ensure a thorough and inclusive process, and the Committee welcomes the Government’s engagement with the ILO throughout the drafting process. The Committee observes that the ITUC provided comments on a 2014 version of the draft Law, raising concerns on a number of provisions. Observing that the Government has further revised the draft Law and has submitted it to the Council of Ministers, the Committee trusts that the draft Trade Union Law will be adopted in the very near future and will be in full conformity with the provisions of the Convention. The Committee requests the Government to indicate progress in this regard and to provide a copy of the Trade Union Law as soon as it is adopted.

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

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Articles 2 and 3. Fixed-duration contracts. The Committee notes the information submitted by the International Trade Union Confederation (ITUC) in a communication received on 1 September 2014 that the steep rise in the use of fixed-duration employment contracts, particularly in the garment industry, has had the effect of avoiding the formation of new trade unions or undermining the power of existing trade unions. The ITUC alleges that workers fear that their contracts will not be renewed if they join a trade union, and that proving anti-union retaliation is made harder. According to the ITUC, there are practical obstacles in that workers may not be employed for sufficient time to form a union or carry out a full term as union leader. In addition, the ITUC observes that labour legislation requires leaders to have one year experience in the factory, which may be harder to accrue under fixed-duration contracts. Recalling that the use of fixed-duration employment contracts should not operate so as to infringe the exercise of the rights enshrined in the Convention, the Committee requests the Government to provide its comments in this regard.

Article 3. Right to elect representatives freely. In its previous comments, the Committee requested the Government to take into account, in the framework of the drafting of the Trade Union Law, the principles that conviction on account of offences, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the exercise of trade union functions, should not constitute grounds for disqualification from holding trade union office; and that organizations’ right to elect representatives in full freedom should not be infringed by preventing qualified persons from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons among their own ranks. The Committee notes the Government’s indication that amendment of the law is not necessary in the context of the forthcoming Trade Union Law. Noting the Government’s indication that the draft Trade Union Law is expected to be adopted by early 2015, the Committee trusts that the Government will take all necessary steps to expedite the adoption of legislative amendments that take into account its comments in this regard.

Right to strike. In its previous comments, the Committee had requested the Government to: (1) amend section 326(2) of the Labour Act, which provides that workers who are required to provide minimum service and who do not appear for such work are considered guilty of serious misconduct and thus liable for termination of their employment; and (2) amend the legislation so as to ensure that any disagreement concerning the establishment of minimum services is settled by an independent body having the confidence of all the parties to the dispute, and not the executive or administrative authority. The Committee notes that the Government refers in this regard to the forthcoming Trade Union Law and that, as essential services is a matter of national security as well as general public law, order and well-being, it requires the coordination and involvement of a broader ministerial presence beyond the Ministry of Labour and Vocational Training. Noting the Government’s indication that the draft Trade Union Law is expected to be adopted by early 2015, the Committee trusts that the Government will take all necessary steps to expedite the adoption of legislative amendments that take into account its comments in this regard.

Article 5. Right of organizations to affiliate with international organizations. The Committee had previously requested the Government to indicate progress on ensuring the right of unions of professional organizations to affiliate with international organizations in the framework of the forthcoming Trade Union Law. The Committee welcomes the Government’s indication that the new Trade Union Law makes explicit provision for employers’ and workers’ organizations to affiliate with international employers’ and workers’ organizations and requests the Government to provide a copy as soon as it is adopted.

Anti-Corruption law. The Committee had requested the Government to provide a copy of the Law on Anti-Corruption, as adopted, as well as information on the activities of the anti-corruption unit, its strategic plan and any other relevant documentation. The Committee once again requests the Government to provide a copy of the Law on Anti-Corruption, as adopted, as well as information on the activities of the anti-corruption unit, its strategic plan and any other relevant documentation, which were not received with its latest report.

[The Government is asked to reply in detail to the present comments in 2015.]

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Follow-up to the discussion of the Committee on the Application of Standards (International Labour Conference, 103rd Session, May–June 2014)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in May–June 2014 concerning the application of the Convention.

The Committee notes the observations made by the International Organisation of Employers (IOE) in a communication received on 1 September 2014. It further notes the observations of the IOE and Cambodian Federation of Employers and Business Associations (CAMFEBA) received on 1 September 2014, referring to the progress made since ratification of the Convention and the challenges arising from a multiplicity of trade unions. They refer, among others, to a proliferation of unrepresentative minority unions which do not create an environment for harmonious industrial relations.

The Committee further notes the observations made by the International Trade Union Confederation (ITUC) received on 31 August 2014, which refer in particular to the killing, arrests and detentions of workers involved in demonstrations, and a blockage on registration of new independent unions. It further notes the observations made by Education International (EI) and its affiliate, the National Educators’ Association for Development (NEAD), in a communication received on 10 September 2014 referring to serious violence against protesters and the absence of a legal framework for teachers and public servants to form unions and the intimidation they face when they become members of an association. The Committee notes that the Government, in response to previous observations submitted by workers’ organizations, indicates the formation in December 2012 of a tripartite working group to study the labour contract and assures that no trade union members who have fulfilled their obligations and respected the law have been dismissed.

The Committee requests the Government to provide its comments on the observations submitted by the IOE, the CAMFEBA, the ITUC, EI and the NEAD. The Committee further requests the Government to respond to the ITUC’s allegation that registration of at least 30 new independent trade unions has been halted by new, ad hoc registration requirements, and that a requirement for union leaders to submit criminal background checks causes a problem for those charged in relation to legitimate trade union activity.

In its previous observation, the Committee had noted the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2318 and had urged the Government to ensure that thorough and independent investigations into the murders of trade union leaders Chea Vichea, Ros Sovannareth and Hy Vuthy were carried out expeditiously. It had further requested the Government to conduct an independent and impartial investigation into the prosecution of Born Samnang and Sok Sam Oeun, the two individuals who had been convicted of Chea Vichea’s murder following a judicial process characterized by the absence of full guarantees of due process of law. The Committee welcomes the Government’s indication that on 25 September 2013 the Supreme Court lifted charges against Born Samnang and Sok Sam Oeun and they were released. The Committee notes the Government’s further indication that the competent authorities are still investigating to determine culpability for the murder and that the cases of Ros Sovannareth and Hy Vuthy are still before the court. The Committee once again requests the Government to ensure that thorough and independent investigations into the murders of trade union leaders Chea Vichea, Ros Sovannareth and Hy Vuthy are carried out expeditiously so as to punish the guilty parties and bring to an end the prevailing situation of impunity, and hopes that it may soon be able to report progress in this regard.

Trade union rights and civil liberties. In its previous observation, the Committee urged the Government to take all the necessary measures to ensure that trade union rights of workers are fully respected and that trade unionists are able to engage in their activities in a climate free of intimidation or risk to their personal security and their lives, as well as the lives of their families. The Committee notes that the Government indicates that the rights of trade unions have not been interfered with by the authorities and that the Government has not arrested anyone who has not acted against the law. The Committee notes with concern the further allegations of serious violence and harassment of trade union members and leaders since January 2014 and in particular the information provided by the ITUC and the NEAD concerning strikes and demonstrations on 2–3 January 2014 in the context of minimum wage setting, which resulted in deaths, serious violence and assaults, the arrests of 23 workers, and their trial in what were alleged to be procedurally irregular processes. The Committee further notes the allegations of the IOE and CAMFEBA that the violence in January 2014 started in the trade union movement. The Committee also notes information from the ITUC concerning a new Committee to Solve Strikes and Demonstrations said to be made up of the heads of the armed forces, and allegations that, following the January protests, the Government has repeatedly used force to break up demonstrations and rallies including on International Women’s Day and May Day, and has detained trade union leaders for participating in those events. The ITUC further alleges that garment manufacturers have lodged civil and criminal complaints against unions, without evidence that they called for or condoned property damage, and have used the judicial system to harass unionists by lodging baseless claims. Recalling that without civil liberties trade union rights are limited or non-existent, the Committee urges the Government to take all necessary measures to ensure that civil liberties are fully respected and that trade unionists are able to engage in their activities in a climate free of intimidation or risk to their personal security and their lives, as well as the lives of their families. The Committee requests the Government to provide detailed information on the establishment, objective and functioning of the Committee to Solve Strikes and Demonstrations, and to ensure that thorough investigations are carried out expeditiously into the events of 2–3 January 2014 by independent bodies having the confidence of all the parties. The Committee requests the Government to provide information on progress made in this regard in its next report.

Independence of the judiciary. In its previous observation, the Committee requested, as had the Conference Committee in 2013, the Government to indicate whether proposed laws on the status of judges and prosecutors and on the organization and functioning of the courts had been adopted, and to provide information in this regard and in relation to progress made in the creation of labour courts. Noting the Government’s indication that these laws have been adopted by the National Assembly and forwarded to the Senate, the Committee requests the Government to provide information on any capacity-building or other measures undertaken in relation to these laws so as to ensure the independence and effectiveness of the judicial system in practice. The Committee further requests the Government to provide information on the progress made in the creation of labour courts.

Draft Trade Union Act. In its previous observation, the Committee requested the Government to provide information on the steps taken towards the adoption of the new Act, and hoped that the social partners would be fully consulted throughout the process and that the Act would take into account all of its comments and, in particular, that civil servants, teachers, air and maritime transport workers, judges and domestic workers would be fully guaranteed the rights enshrined in the Convention. The Committee notes the Government’s indication that the social partners have been consulted on the draft Act, which will be amended accordingly. The Committee further notes the Government’s indication that air and maritime transport workers are covered, while civil servants, teachers, court officials, soldiers and police officers are under other laws. Noting the Government’s indication that the draft Trade Union Law is expected to be adopted by early 2015, the Committee trusts that the Government will take all necessary steps to expedite the adoption of legislative amendments that take into account all its previous comments ensuring the rights under the Convention to all workers, whether through the Trade Union Law or other relevant legislative measures. The Committee reminds the Government that it may avail itself of technical assistance from the Office in this regard.

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

[The Government is asked to reply in detail to the present comments in 2015.]

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request.

Repetition

Article 3. Right to elect representatives freely. The Committee had previously requested the Government to amend section 269(3) of the Labour Act, which disqualifies persons convicted of any crime from being elected to the post responsible for the administration and management of a professional organization, as well as section 2(3) of Prakas No. 021 on the registration of professional organizations, which provides that the persons responsible for the leadership and administration of the organization should never have been convicted of any criminal acts, in order to limit this restriction to convictions clearly touching upon the integrity of the person concerned. The Committee had noted the Government’s indication that the ministry will continue to implement the existing labour law until the Trade Union Act is in force. The Committee recalls that conviction on account of offences, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the exercise of trade union functions, should not constitute grounds for disqualification from holding trade union office, and any legislation providing for disqualification on the basis of any offence is incompatible with the principles of freedom of association. In the framework of the drafting of the Trade Union Act, the Committee once again requests the Government to take the necessary measures to ensure that the abovementioned principle will be taken into account, and to provide information in this respect.

Furthermore, the Committee had previously requested the Government to amend section 269(4) of the Labour Act, which requires trade union members to be engaged in the profession or the job for at least one year before being elected to the trade union office. The Committee had noted the Government’s indication that the Ministry will continue to implement the existing labour law until the Trade Union Act is in force. The Committee recalls that provisions of this type infringe the organizations’ right to elect representatives in full freedom by preventing qualified persons from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons among their own ranks. The Committee considers that in order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey on freedom of association and collective bargaining, 1994, paragraph 117). In the framework of the drafting of the Trade Union Act, the Committee once again requests the Government to take the necessary measures to ensure that the abovementioned principle will be taken into account, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have been engaged in the industry for less than one year and those who have previously been employed in the organization concerned.

Right to strike. Previously, the Committee had requested the Government to amend section 326(1) of the Labour Act, which provides that a minimum service should be arranged in the enterprise where a strike is taking place and if there is no agreement between the parties to the dispute, that the Ministry of Labour shall determine the minimum services in question. The Committee had noted the Government’s indication that the Ministry will continue to implement the existing labour law until the Trade Union Act is in force. The Committee recalls that the authorities may establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. Minimum services could be appropriate in situations in which a substantial restriction or a total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption (see General Survey, op. cit., paragraphs 160 and 162). In the framework of the drafting of the Trade Union Act, the Committee once again requests the Government to take the necessary measures to ensure that minimum services will be in keeping with the abovementioned principles and, in particular, to: (1) amend section 326(2) of the Labour Act, which provides that workers who are required to provide minimum service and who do not appear for such work are considered guilty of serious misconduct; and (2) amend the legislation so as to ensure that any disagreement concerning the establishment of minimum services is settled by an independent body having the confidence of all the parties to the dispute, and not the executive or administrative authority.

Article 5. Right of organizations to affiliate with international organizations. The Committee had previously requested the Government to indicate whether the unions of professional organizations have the right to affiliate with international organizations, and to specify the relevant legislative provisions. The Committee had noted the Government’s indication that, although no legal provisions provide for this right at present, in practice, many trade unions are affiliated with international organizations and that the upcoming Trade Union Act will include a provision guaranteeing this right. The Committee once again requests the Government to indicate the progress made to include expressly this right in its legislation, in order to align the law with its practice.

The Committee recalls the Government’s previous indication that an anti-corruption law had been adopted together with a five-year strategic plan (2011–15) and that an anti-corruption unit (ACU) had been established as a part of its commitment to legal and judicial reform in combating impunity. The Committee notes a copy of a draft Law on Anti-Corruption transmitted by the Government. It requests the Government to provide a copy of the adopted Law, if different from the draft, as well as the information on the activities of the anti-corruption unit, together with the strategic plan and any other relevant document.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 102nd Session, June 2013)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in June 2013 concerning the application of the Convention.

The Committee notes with regret that the Government’s report has not been received.

The Committee recalls that it had previously urged the Government to send its observations on the comments made in 2010, 2011 and 2012 by the International Trade Union Confederation (ITUC), the Cambodian Labour Confederation (CLC), Education International (EI), the Cambodian Independent Teachers’ Association (CITA) and the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC), which referred to serious acts of violence and harassment against trade union leaders and members. The Committee notes with concern the new comments submitted by the ITUC in a communication dated 21 August 2013 alleging serious violations of the Convention. The Committee urges the Government to provide its observations on all outstanding comments submitted by the ITUC, CLC, EI, CITA and the FTUWKC.

The Committee notes the comments of the International Organisation of Employers (IOE) and the Cambodian Federation of Employers and Business Association (CAMFEBA) in a communication dated 30 August 2013. The Committee notes that both organizations consider that “freedom of association and the right to organize are extremely well practiced in Cambodia”, refer to the challenges resulting from the growing multiplicity of unions, dispute the allegations concerning the use of fixed duration contracts and are of the opinion that the issue of the Trade Union Act should not be addressed by the Committee.

The Committee notes the latest conclusions and recommendations of the Committee on Freedom of Association in Case No. 2318 concerning the murders of trade union leaders Chea Vichea, Ros Sovannareth and Hy Vuthy and the continuing repression of unionists, which had to be examined in the absence of a response from the Government and was considered as an extremely serious and urgent case (370th Report, paragraphs 144–168). In the absence of the Government’s reply, the Committee, like the Committee on Freedom of Association and the Conference Committee, once again strongly urges the Government to ensure that thorough and independent investigations into the murders of Chea Vichea, Ros Sovannareth and Hy Vuthy are carried out expeditiously to ensure that all available information will finally be brought before the courts in order to determine the actual murderers of these trade union leaders and instigators, punish the guilty parties and bring to an end the prevailing situation of impunity as regards violence against trade union leaders. The Committee further requests the Government to conduct an independent and impartial investigation into the prosecution of Born Samnang and Sok Sam Oeun, including allegations of torture and other ill-treatment by police, intimidation of witnesses and political interference with the judicial process. The Committee requests the Government to provide information on the outcome of the investigations and on the measures of redress for their wrongful imprisonment.

Trade union rights and civil liberties. In its previous observations, the Committee urged the Government to take all the necessary measures, in the very near future, to ensure that trade union rights of workers are fully respected and that trade unionists are able to engage in their activities in a climate free of intimidation and risk to their personal security and their lives as well as the lives of their families. The Committee notes with regret the absence of the Government’s reply, particularly in view of the comments made by a number of workers’ organizations alleging serious acts of violence and harassment against trade union leaders and members, and in the wake of the Conference Committee’s discussion on Cambodia relating to the persistent climate of violence and intimidation towards union members. The Committee is bound to recall, once again, that freedom of association can only be exercised in a climate that is free from violence, pressure or threats of any kind against leaders and members of workers’ organizations, and that detention of trade unionists for reasons connected with their activities in defence of the interests of workers, constitutes a serious interference with civil liberties in general and with trade union rights in particular. It further recalls that workers have the right to participate in peaceful demonstrations to defend their occupational interests. In light of the above, the Committee once again urges the Government to take all the necessary measures, in the very near future, to ensure that trade union rights of workers are fully respected and that trade unionists are able to engage in their activities in a climate free of intimidation or risk to their personal security and their lives, as well as the lives of their families, in accordance with the abovementioned principles. The Committee requests the Government to provide information in this regard.

Independence of the judiciary. In its previous observations, the Committee noted the conclusions of the ILO direct contacts mission of April 2008, referring to serious problems of capacity and lack of independence of the judiciary. The Committee requested the Government to take concrete and tangible steps, as a matter of urgency, to ensure the independence and effectiveness of the judicial system, including capacity-building measures and the institution of safeguards against corruption. In this regard, the Committee notes that, in June 2013, the Conference Committee urged the Government to: (i) adopt without delay the proposed law on the status of judges and prosecutors and the law on the organization and functioning of the courts, and ensure their full implementation; (ii) provide information on the progress made in this regard, as well as in respect of the creation of labour courts; and (iii) transmit the draft texts to the Committee of Experts. The Committee notes with regret that none of these texts have been transmitted. It once again requests the Government to indicate whether these laws have been adopted, and, if so, to provide a copy thereof. If this is not the case, the Committee urges the Government to take all necessary measures to ensure their adoption without delay.

The Committee also requests the Government to provide in its next report information on any progress made concerning the creation of labour courts.

The draft Trade Union Act. The Committee notes that the June 2013 Conference Committee once again called on the Government to intensify its efforts, in full consultation with the social partners and with the assistance of the ILO, to ensure the rapid adoption of the Trade Union Act by the end of 2013 so as to fully guarantee the rights under the Convention. The Committee once again requests the Government to provide information on the steps taken towards the adoption of the Act, and expresses the firm hope that the social partners will be fully consulted throughout the process, and that the final draft legislation will take into account all its comments and in particular that civil servants, teachers, air and maritime transport workers, judges and domestic workers will be fully guaranteed the rights enshrined in the Convention.

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

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee notes the information provided by the Government in its report that many consultations have been conducted on the draft legislation on trade unions, which has been finalized in August 2011 and was sent to the Council of Ministers for review. The Government adds that it hopes that the relevant institutions to which it would be sent afterwards would then review the draft to make it better. The Committee notes that it has not received a copy of the final draft legislation and that the Government’s report does not contain information on the specific matters raised in its previous direct request. It is therefore bound to reiterate its comments and hopes that a report containing full information will be supplied for examination at its next session.

Article 3. Right to elect representatives freely. The Committee had previously requested the Government to amend section 269(3) of the Labour Act, which disqualifies persons convicted of any crime from being elected to the post responsible for the administration and management of a professional organization, as well as section 2(3) of Prakas No. 021 on the registration of professional organizations, which provides that the persons responsible for the leadership and administration of the organization should never have been convicted of any criminal acts, in order to limit this restriction to convictions clearly touching upon the integrity of the person concerned. The Committee had noted the Government’s indication that the ministry will continue to implement the existing labour law until the Trade Union Act is in force. The Committee recalls that conviction on account of offences, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the exercise of trade union functions, should not constitute grounds for disqualification from holding trade union office, and any legislation providing for disqualification on the basis of any offence is incompatible with the principles of freedom of association. In the framework of the drafting of the Trade Union Act, the Committee once again requests the Government to take the necessary measures to ensure that the abovementioned principle will be taken into account, and to provide information in this respect.

Furthermore, the Committee had previously requested the Government to amend section 269(4) of the Labour Act, which requires trade union members to be engaged in the profession or the job for at least one year before being elected to the trade union office. The Committee had noted the Government’s indication that the Ministry will continue to implement the existing labour law until the Trade Union Act is in force. The Committee recalls that provisions of this type infringe the organizations’ right to elect representatives in full freedom by preventing qualified persons from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons among their own ranks. The Committee considers that in order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey on freedom of association and collective bargaining, 1994, paragraph 117). In the framework of the drafting of the Trade Union Act, the Committee once again requests the Government to take the necessary measures to ensure that the abovementioned principle will be taken into account, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have been engaged in the industry for less than one year and those who have previously been employed in the organization concerned.

Right to strike. Previously, the Committee had requested the Government to amend section 326(1) of the Labour Act, which provides that a minimum service should be arranged in the enterprise where a strike is taking place and if there is no agreement between the parties to the dispute, that the Ministry of Labour shall determine the minimum services in question. The Committee had noted the Government’s indication that the Ministry will continue to implement the existing labour law until the Trade Union Act is in force. The Committee recalls that the authorities may establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. Minimum services could be appropriate in situations in which a substantial restriction or a total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption (see General Survey, op. cit., paragraphs 160 and 162). In the framework of the drafting of the Trade Union Act, the Committee once again requests the Government to take the necessary measures to ensure that minimum services will be in keeping with the abovementioned principles and, in particular, to: (1) amend section 326(2) of the Labour Act, which provides that workers who are required to provide minimum service and who do not appear for such work are considered guilty of serious misconduct; and (2) amend the legislation so as to ensure that any disagreement concerning the establishment of minimum services is settled by an independent body having the confidence of all the parties to the dispute, and not the executive or administrative authority.

Article 5. Right of organizations to affiliate with international organizations. The Committee had previously requested the Government to indicate whether the unions of professional organizations have the right to affiliate with international organizations, and to specify the relevant legislative provisions. The Committee had noted the Government’s indication that, although no legal provisions provide for this right at present, in practice, many trade unions are affiliated with international organizations and that the upcoming Trade Union Act will include a provision guaranteeing this right. The Committee once again requests the Government to indicate the progress made to include expressly this right in its legislation, in order to align the law with its practice.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee notes the Government’s response to the concerns expressed by the International Trade Union Confederation (ITUC) in 2011, over the increased use of fixed duration contracts which could undermine the enjoyment of freedom of association and collective bargaining rights. The Government indicates that this longstanding issue has been the subject of tripartite consultations on the basis of draft amendments to the legislation, which had been prepared by the Ministry of Labour and Vocational Training, but that no consensus was reached. It adds that the issue would be the subject of further consultations in the tripartite Labour Advisory Committee in the near future.

The Committee notes with regret that the Government fails to respond to other comments submitted by the ITUC, by the Cambodian Labour Confederation (CLC) and by Education International (EI) in 2011, as well as to the 2010 comments by the ITUC and the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC), which referred in particular to serious acts of violence and harassment against trade union leaders and members. Moreover, the Committee notes with concern the new comments submitted by the ITUC, in a communication dated 31 July 2012, and by EI and the Cambodian Independent Teachers’ Association (CITA), in a communication dated 31 August 2012, which refer again to serious acts of violence and harassment against trade union leaders and members. The Committee urges the Government to send its observations on all the issues raised in 2010, 2011 and 2012, by the ITUC, the CLC, EI and CITA, and the FTUWKC.

The Committee notes the latest conclusions and recommendations of the Committee on Freedom of Association in Case No. 2318, concerning the murders of trade union leaders Chea Vichea, Ros Sovannareth and Hy Vuthy and the continuing repression of unionists, which had to be examined in the absence of a response from the Government, and was considered as an extremely serious and urgent case (365th Report, November 2012, paragraphs 286–290). In its previous comments concerning these murders, the Committee had noted that: (1) the convictions of Sok Sam Oeun and Born Samnang for the murder of Chea Vichea had been remanded to the Appeal Court by the Supreme Court, and they had been released on bail; (2) an investigation was being conducted, before the case of the murder of Chea Vichea would be referred to the Appeal Court for reprocessing; (3) the Supreme Court had ordered on 2 March 2011 the provisional release on bail of Thach Saveth who had been convicted for the murder of Ros Sovannareth and had been awaiting a review of his conviction for several years; and (4) the case of the murder of Hy Vuthy had been sent to the prosecutor of Phnom Penh Municipal Court on 2 September 2010 for processing. In the case of the murder of Chea Vichea, the Appeals Court had announced that there was insufficient evidence to charge the two persons who had served jail sentences, indicated that the charges against them should be dropped and referred the case for further investigation. The Committee had expressed the firm hope that this would allow full and independent investigations into the murders of the abovementioned Cambodian trade union leaders to be conducted so as to bring to justice the actual murderers and perpetrators of these heinous crimes as well as the instigators. Furthermore, in view of the above and the total absence of due process in relation to the trials of Sok Sam Oeun, Born Samnang and Thach Saveth, the Committee had requested the Government to provide information on any steps taken to compensate them for damages. The Committee notes the Government’s indication in its report that the Ministry of Labour and Vocational Training sent a letter to the Ministry of Justice, and that information would be provided upon receipt of the latter’s response. The Committee urges the Government to provide the information previously requested in relation to the compensation to be granted to Sok Sam Oeun, Born Samnang and Thach Saveth.

Trade union rights and civil liberties. In its previous observations, the Committee urged the Government to take all the necessary measures, in the very near future, to ensure that trade union rights of workers are fully respected and that trade unionists are able to engage in their activities in a climate free of intimidation and risk to their personal security and their lives as well as that of their families. The Committee notes with regret that the Government remains silent on these matters in its report, particularly when the comments made by a number of workers’ organizations allege serious acts of violence and harassment against trade union leaders and members, and the discussion on Cambodia in the Conference Committee on the Application of Standards in June 2011 relates to the persistent climate of violence and intimidation towards union members. The Committee is bound to recall, once again, that freedom of association can only be exercised in a climate that is free from violence, pressure or threats of any kind against leaders and members of workers’ organizations, and that detention of trade unionists for reasons connected with their activities in defence of the interests of workers, constitutes a serious interference with civil liberties in general and with trade union rights in particular. It further recalls that workers have the right to participate in peaceful demonstrations to defend their occupational interests. In light of the above, the Committee once again urges the Government to take all the necessary measures, in the very near future, to ensure that trade union rights of workers are fully respected and that trade unionists are able to engage in their activities in a climate free of intimidation and risk to their personal security and their lives as well as that of their families, in accordance with the abovementioned principles. The Committee requests the Government to provide information in this regard.

Independence of the judiciary. In its previous observations, the Committee, noting the conclusions of the ILO direct contacts mission of April 2008, referring to serious problems of capacity and lack of independence of the judiciary, requested the Government to take concrete and tangible steps, as a matter of urgency, to ensure the independence and effectiveness of the judicial system, including capacity-building measures and the institution of safeguards against corruption. In this regard, the Committee recalls that in 2011 the Conference Committee on the Application of Standards urged the Government to: (1) adopt without delay the proposed law on the status of judges and prosecutors and the law on the organization and functioning of the courts and ensure their full implementation; (2) provide information on the progress made in this regard, as well as in respect of the creation of labour courts; and (3) transmit the draft texts to the Committee of Experts so that it would be in a position to comment as to their conformity with the Convention. The Committee notes that none of these texts have been received. It once again requests the Government to indicate whether these laws have been adopted, and, if so, to provide a copy of these laws. If this is not the case, the Committee urges the Government to adopt them without delay.

The Committee further requests the Government to provide in its next report information on any progress made concerning the creation of labour courts.

Furthermore, in relation to the Government’s previous indication that an anti-corruption law had been adopted together with a five-year strategic plan (2011–15) and that an anti-corruption unit (ACU) had been established, the Committee notes from the Government’s statement before the ILO Governing Body at its 316th Session that the ACU was established as a part of its commitment to legal and judicial reform in combating impunity, and requests the Government provide information on the composition and mandate of the anti-corruption institution and on its activities, together with a copy of the law, the strategic plan and any other relevant document.

The draft Trade Union Act. In its previous observation, the Committee noted that the ITUC, the CLC and EI, in their 2011 comments, expressed concerns over a number of provisions of the draft Trade Union Act, in particular in relation to the scope of application of the law, the requirements for a local union to be registered, the possibility for the Ministry of Labour to suspend the registration of a union, the qualifications imposed for trade union leadership, and the sanctions on trade union leaders and members for the commission of unfair labour practices. The Committee had also noted that the Government had benefited from the Office’s assistance on the draft law. The Committee recalls that in 2011 the Conference Committee on the Application of Standards urged the Government to: (1) intensify its efforts, in full consultation with the social partners and with the assistance of the ILO, to ensure that the final draft legislation on trade unions would be fully in conformity with the Convention; and (2) transmit the draft text to the Committee of Experts so that it would be in a position to comment as to its conformity with the Convention. The Committee notes the information provided by the Government in its report that many consultations have been conducted on the draft which has been finalized in August 2011 and was sent to the Council of Ministers for review. The Government adds that it hopes that the relevant institutions to which it would be sent afterwards would then review the draft to improve it. The Committee notes that no copy of the final draft legislation on trade unions has been received. It once again requests the Government to provide information on the steps taken towards the adoption of the Trade Union Act, and expresses the firm hope that the social partners will be fully consulted throughout the process, and that the final draft legislation will take into account all its comments and in particular that civil servants, teachers, air and maritime transport workers, judges and domestic workers will be fully guaranteed the rights enshrined in the Convention.

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

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes that the Government’s report does not contain information on the matters raised in its previous direct request. It is therefore bound to reiterate its comments and hopes that a report containing full information will be supplied for examination at its next session.

Article 3. Right to elect representatives freely. The Committee had previously requested the Government to amend section 269(3) of the Labour Law, which disqualifies persons convicted of any crime from being elected to the post of responsible for the administration and management of a professional organization, as well as section 2(3) of Prakas No. 021 on the registration of professional organizations, which provides that the persons responsible for the leadership and administration of the organization should never have been convicted of any criminal acts, in order to limit this restriction to convictions clearly touching upon the integrity of the person concerned. The Committee had noted the Government’s indication that the ministry will continue to implement the existing labour law until the Trade Union Law is in force. The Committee recalls that conviction on account of offences, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the exercise of trade union functions, should not constitute grounds for disqualification from holding trade union office, and any legislation providing for disqualification on the basis of any offence is incompatible with the principles of freedom of association. In the framework of the drafting of the Trade Union Law, the Committee once again requests the Government to take the necessary measures to ensure that the abovementioned principle will be taken into account, and to provide information in this respect.

Furthermore, the Committee had previously requested the Government to amend section 269(4) of the Labour Law, which requires trade union members to be engaged in the profession or the job for at least one year before being elected to the trade union office. The Committee had noted the Government’s indication that the Ministry will continue to implement the existing labour law until the Trade Union Law is in force. The Committee recalls that provisions of this type infringe the organizations’ right to elect representatives in full freedom by preventing qualified persons from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons among their own ranks. The Committee considers that in order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey, op. cit., paragraph 117). In the framework of the drafting of the Trade Union Law, the Committee once again requests the Government to take the necessary measures to ensure that the abovementioned principle will be taken into account, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have been engaged in the industry for less than one year and those who have previously been employed in the organization concerned.

Right to strike. Previously, the Committee had requested the Government to amend section 326(1) of the Labour Law, which provides that a minimum service should be arranged in the enterprise where a strike is taking place and if there is no agreement between the parties to the dispute, that the Ministry of Labour shall determine the minimum services in question. The Committee had noted the Government’s indication that the Ministry will continue to implement the existing labour law until the Trade Union Law is in force. The Committee recalls that the authorities may establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. Minimum services could be appropriate in situations in which a substantial restriction or a total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption (see General Survey, op. cit., paragraphs 160 and 162). In the framework of the drafting of the Trade Union Law, the Committee once again requests the Government to take the necessary measures to ensure that minimum services will be in keeping with the abovementioned principles and, in particular, to: (1) amend section 326(2) of the Labour Law, which provides that workers who are required to provide minimum service and who do not appear for such work are considered guilty of serious misconduct; and (2) amend the legislation so as to ensure that any disagreement concerning the establishment of minimum services is settled by an independent body having the confidence of all the parties to the dispute, and not the executive or administrative authority.

Article 5. Right of organizations to affiliate with international organizations. The Committee had previously requested the Government to indicate whether the unions of professional organizations have the right to affiliate with international organizations, and to specify the relevant legislative provisions. The Committee had noted the Government’s indication that although no legal provisions provide for this right at present, in practice, many trade unions are affiliated with international organizations and that the upcoming Trade Union Law will include a provision guaranteeing this right. The Committee once again requests the Government to indicate the progress made to include expressly this right in its legislation, in order to align the law with its practice.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 100th Session, June 2011)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC), dated 4 and 31 August 2011, and by the Cambodian Labour Confederation (CLC) and Education International (EI), in two communications both dated 31 August 2011. The Committee notes that these comments refer to serious acts of violence and harassment against trade union leaders and members and other violations of the Convention, as well as concerns over the increase in use of fixed duration contracts which could undermine the enjoyment of freedom of association and collective bargaining rights. The Committee urges the Government to send its observations on all the issues raised by the ITUC, the CLC and EI, as well as on the 2010 comments by the ITUC and the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC).

In addition, the Committee notes the conclusions and recommendations of the Committee on Freedom of Association concerning the murders of trade union leaders Chea Vichea, Ros Sovannareth and Hy Vuthy and the continuing repression of unionists (Case No. 2318). As regards the impunity prevailing in these three murders, the Committee noted, in its previous observation, that the convictions of Sok Sam Oeun and Born Samnang for the murder of Chea Vichea had been remanded to the Appeal Court by the Supreme Court and that they had been released on bail; that Thach Saveth who had been convicted for the murder of Ros Sovannareth had been awaiting a review of his conviction by the Supreme Court for several years; and that no information had been provided in relation to the murder of Hy Vuthy. The Committee notes the information provided by the Government in its report, according to which: (1) an investigation was being conducted in the case of the murder of Chea Vichea, following which the case would be sent to the Appeal Court for re-processing; (2) the Supreme Court ordered on 2 March 2011 the provisional release of Thach Saveth on bail; and (3) the case of the murder of Hy Vuthy has been sent to the prosecutor of Phnom Penh Municipal Court on 2 September 2010 for processing. The Committee expresses the firm hope that the reopening of these three cases by the judiciary will allow full and independent investigations into the murders of the abovementioned Cambodian trade union leaders to be conducted so as to bring to justice the actual murderers and perpetrators of these heinous crimes as well as the instigators. Recalling its previous comments and the conclusions of the Committee on Freedom of Association concerning the total absence of due process in relation to the trials of Sok Sam Oeun, Born Samnang and Thach Saveth, the Committee requests the Government to provide information of any steps taken to compensate them for damages.

Finally, the Committee takes note of the discussions on Cambodia in the Conference Committee on the Application of Standards (June 2011). It notes in particular that the Conference Committee urged the Government to: (1) adopt without delay the proposed law on the status of judges and prosecutors and the law on the organization and functioning of the courts and ensure their full implementation; (2) provide information on the progress made in this regard, as well as in respect of the creation of labour courts; (3) intensify its efforts, in full consultation with the social partners and with the assistance of the ILO, to ensure that the final draft legislation on trade unions would be fully in conformity with the Convention; and (4) transmit the draft texts to the Committee of Experts so that it would be in a position to comment as to their conformity with the Convention.

Trade union rights and civil liberties. In its previous observations, the Committee urged the Government to take all the necessary measures to ensure that the trade union rights of workers were fully respected and that trade unionists were able to engage in their activities in a climate free of intimidation and risk. The Committee takes note of the comments made by the ITUC and the CLC, concerning serious acts of violence and harassment against trade union leaders and members, such as a violent attack against the president of the FTUWKC or the arrest of another union leader, as well as of the discussion during the Conference Committee, regarding the persistent climate of violence and intimidation towards union members. The Committee is bound to recall, once again, that freedom of association can only be exercised in a climate that is free from violence, pressure or threats of any kind against leaders and members of workers’ organizations and that detention of trade unionists for reasons connected with their activities in defence of the interests of workers, constitutes a serious interference with civil liberties in general and with trade union rights in particular. The Committee further recalls that workers have the right to participate in peaceful demonstrations to defend their occupational interests. In light of the above, the Committee once again urges the Government to take all the necessary measures, in the very near future, to ensure that trade union rights of workers are fully respected and that trade unionists are able to engage in their activities in a climate free of intimidation and risk to their personal security and their lives as well as that of their families, in accordance with the abovementioned principles.

Independence of the judiciary. In its previous observations, the Committee, noting the conclusions of the ILO direct contacts mission of April 2008, referring to serious problems of capacity and lack of independence of the judiciary, requested the Government to take concrete and tangible steps, as a matter of urgency, to ensure the independence and effectiveness of the judicial system, including capacity-building measures and the institution of safeguards against corruption. The Committee notes that the Government indicates in its report that an anti-corruption law was adopted together with a five year strategic plan (2011–15) and that an anti-corruption institution has been established. The Committee requests the Government to provide information on the composition and mandate of the anti-corruption institution and on its activities, together with a copy of the law, the strategic plan and any other relevant document.

With regard to the proposed laws on the Status of Judges and Prosecutors and on the Organization and Functioning of the Courts, in the absence of any further information, the Committee requests the Government to indicate whether these laws have been adopted. If this is the case, it reiterates its request to the Government to provide a copy of these laws. If not, it urges the Government to adopt them without delay.

Furthermore, in the absence of any further information on the creation of labour courts, the Committee is bound to reiterate its request to the Government to provide information on the progress made in this regard.

The draft Trade Union Law. In its previous observation, the Committee noted that the Government indicated that it was working with the cooperation of the ILO on a draft Trade Union Law. The Committee notes that the ITUC, the CLC and EI, in their 2011 comments, express concerns over a number of provisions of the draft Trade Union Law, in particular in relation to the scope of application of the law, the requirements for a local union to be registered, the possibility for the Ministry of Labour to suspend the registration of a union, the qualifications imposed for trade union leadership, and the sanctions on trade union leaders and members for the commission of unfair labour practices. Moreover, the CLC indicates that in the course of the drafting process the Government only took into consideration comments from the employers’ organizations. EI further indicates that the Cambodian Independent Teachers’ Association had not been consulted. The Committee also notes that the Conference Committee trusted that the new legislation would ensure, in particular, that civil servants, teachers, air and maritime transport workers, judges and domestic workers are fully guaranteed the rights under the Convention. The Committee has also been informed that a draft of the Trade Union Law has been sent to the Office and that the Government has benefited from the Office’s assistance on the draft law. The Committee requests the Government to ensure that full consultation with the social partners on the draft Trade Union Law take place. Furthermore, the Committee expresses the firm hope that the final draft legislation on trade unions will take into account all its comments and in particular that civil servants, teachers, air and maritime transport workers, judges and domestic workers will be fully guaranteed the rights under the Convention. It requests the Government to provide information on the adoption of the Trade Union Law.

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

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC), dated 24 August 2010.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. In its previous comments, the Committee requested the Government to take the necessary measures so as to ensure that judges and temporarily and permanently appointed officials in the public service enjoy the right to establish and join organizations. The Committee notes that the Government indicates in its report that judges as well as other categories of public employees are not covered by the Labour Code, but have their own statutes and associations. Noting that a Law on the Status of Judges and Prosecutors is being prepared, the Committee requests the Government to take into account that judges should enjoy the right to establish and join organizations of their own choosing for the promotion and defence of their occupational interests, and to provide information in this respect in its next report.

Furthermore, in its previous comments, the Committee noted that “civil servants of the legislative order” were employees of the secretariats of the National Assembly and Senate, and were thereby excluded from the provisions of the Common Statute of Civil Servants. The Committee notes that both the Committee on Freedom of Association (Case No. 2222) and the ITUC refer to civil servants’ associations that are registered, but that are not recognized as unions by the Labour Ministry, in particular teachers’ associations. Furthermore the Committee notes that the Government indicated during the discussions in the Conference Committee on the Application of Standards in June 2010 that it was considering guaranteeing the right of freedom of association to civil servants. The Committee recalls that with the exception of the members of the police and the armed forces, the guarantee of the right of association should apply to all workers, including public servants and officials. All public servants and officials should have the right to establish occupational organizations, irrespective of whether they are engaged in the state administration, are officials of bodies which provide important public services or are employed in state-owned economic undertakings (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 48, 49 and 55). Moreover, all workers, whether they are employed on a permanent or temporary basis, should have the right to establish and join organizations of their own choosing. Recalling that the Conference Committee expressed the hope that the necessary measures will be taken in the near future to ensure freedom of association rights for civil servants, the Committee requests the Government to provide information in its next report on any legislative measure taken or contemplated to ensure that civil servants, including teachers, legislative employees and temporary officers, enjoy the right to establish and join organizations of their choosing.

Right of workers to establish organizations without previous authorization. The Committee had previously requested the Government to indicate whether workers’ and employers’ organizations might be refused registration and in that case, to indicate the permissible grounds for such a refusal. The Committee noted that the Government indicated that the criteria and procedures for the registration were set out in Prakas No. 021 and that, if authorities do not reply within two months after receipt of an organization’s registration form, the organization is considered to be registered. The Committee takes due note of the Government’s statement, in its report, that there has not been any refusal of registration and that a request for registration only has to meet the criteria set out in the Labour Code and Prakas No. 021 to be successful.

Article 3. Right to elect representatives freely. The Committee had previously requested the Government to amend section 269(3) of the Labour Law, which disqualifies persons convicted of any crime from being elected to the post of responsible for the administration and management of a professional organization, as well as section 2(3) of Prakas No. 021 on the registration of professional organizations, which provides that the persons responsible for the leadership and administration of the organization should never have been convicted of any criminal acts, in order to limit this restriction to convictions clearly touching upon the integrity of the person concerned. The Committee notes that the Government indicates in its report that the Ministry will continue to implement the existing labour law until the Trade Union Law is in force. The Committee recalls that conviction on account of offences, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the exercise of trade union functions, should not constitute grounds for disqualification from holding trade union office, and any legislation providing for disqualification on the basis of any offence is incompatible with the principles of freedom of association. In the framework of the drafting of the Trade Union Law, the Committee requests the Government to take the necessary measures to ensure that the abovementioned principle will be taken into account, and to provide information in this respect in its next report.

Furthermore, the Committee had previously requested the Government to amend section 269(4) of the Labour Law, which requires trade union members to be engaged in the profession or the job for at least one year before being elected to trade union office. The Committee notes that the Government indicates in its report that the Ministry will continue to implement the existing labour law until the Trade Union Law is in force. The Committee recalls that provisions of this type infringe the organizations’ right to elect representatives in full freedom by preventing qualified persons from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons among their own ranks. The Committee considers that in order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey, op. cit., paragraph 117). In the framework of the drafting of the Trade Union Law, the Committee requests the Government to take the necessary measures to ensure that the abovementioned principle will be taken into account, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have been engaged in the industry for less than one year and those who have previously been employed in the organization concerned.

Right to strike. Previously, the Committee had requested the Government to amend section 326(1) of the Labour Law, which provides that a minimum service should be arranged in the enterprise where a strike is taking place and if there is no agreement between the parties to the dispute, that the Ministry of Labour shall determine the minimum services in question. The Committee notes that the Government indicates in its report that the Ministry will continue to implement the existing labour law until the Trade Union Law is in force. The Committee recalls that the authorities may establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. Minimum services could be appropriate in situations in which a substantial restriction or a total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption (see General Survey, op. cit., paragraphs 160 and 162). In the framework of the drafting of the Trade Union Law, the Committee once again requests the Government to take the necessary measures to ensure that minimum services will be in keeping with the abovementioned principles and, in particular, to: (1) amend section 326(2) of the Labour Law, which provides that workers who are required to provide minimum service and who do not appear for such work are considered guilty of serious misconduct; and (2) amend the legislation so as to ensure that any disagreement concerning the establishment of minimum services is settled by an independent body having the confidence of all the parties to the dispute, and not the executive or administrative authority.

Article 5. Right of organizations to affiliate with international organizations. The Committee had previously requested the Government to indicate whether the unions of professional organizations have the right to affiliate with international organizations, and to specify the relevant legislative provisions. The Committee notes that the Government indicates in its report that although no legal provisions provide for this right at present, in practice, many trade unions are affiliated with international organizations and that the upcoming Trade Union Law will include a provision guaranteeing this right. The Committee requests the Government to indicate in its next report the progress made to include expressly this right in its legislation, in order to align the law with its practice.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) dated 24 August 2010, concerning acts of violence and harassment against trade union leaders and members as well as other violations of the Convention. The Committee notes, in particular, the information provided by the ITUC regarding the absence of a labour court, the overall deficiency of the judicial system in respect of the murders of trade unionists Chea Vichea and Ros Sovannareth and the persistent climate of repression towards trade union activities.

The Committee further notes the comments made by the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC) dated 31 August 2010, indicating that independent trade unions remain fragile, under-resourced and operating in an extremely difficult context; that the FTUWKC struggles to be recognized by the Government as a valid stakeholder in the policy-making process; and that there has been no let up in anti-union harassment, intimidation and dismissal of union members, who continue to face police violence, attacks, weak law enforcement and employer impunity. The Committee also notes that the FTUWKC indicates that the 2009 Law on Peaceful Demonstrations severely impacts on the organization of strikes, rallies and other union activities and that the 2009 Penal Code, by retaining defamation and disinformation as criminal offences, potentially affects trade union activities. The Committee urges the Government to send its observations on all the issues raised by the ITUC and the FTUWKC in its next report.

In addition, the Committee notes the conclusions and recommendations of the Committee on Freedom of Association concerning the murders of trade union leaders Chea Vichea, Ros Sovannareth and Hy Vuthy and the continuing repression of unionists (Case No. 2318) as well as the denial of the right to form trade unions of public employees (Case No. 2222).

As regards the impunity prevailing in the murder of the abovementioned trade unionists, the Committee recalls that two individuals were convicted for the murder of Chea Vichea (Sok Sam Oeun and Born Samnang) and Thach Saveth was convicted of the murder of Ros Sovannareth in trials that were fraught with judicial irregularities and an absence of due process. Despite international calls for full, independent and impartial investigations since the moment of these murders, as well as that of Hy Vuthy, the Government has failed to provide any information on the steps taken in this regard or to provide any independent report. While noting that the convictions of Sok Sam Oeun and Born Samnang were remanded to the Appeal Court by the Supreme Court and that they have now been released on bail, the Government has yet to provide any information on the investigations to be carried out to determine the actual murderers and instigators of the assassination of Chea Vichea. Moreover, Thach Saveth has been awaiting a review of his conviction by the Supreme Court for several years now. No information has been provided on the progress made of investigations into the murder of Hy Vuthy.

Finally, the Committee takes note of the discussions on Cambodia in the Conference Committee on the Application of Standards (June 2010). It notes in particular that the Conference Committee regretted the lack of information relating to the long-awaited independent investigations into these murders. The Conference Committee recalled that freedom of association rights of workers and employers can only be exercised in a climate free from violence, pressure and threats and urged the Government to ensure respect for this fundamental principle and bring an end to impunity by taking the necessary steps, as a matter of urgency, to ensure full and impartial investigations into the murders of these trade union leaders and to bring, not only the perpetrators, but also the instigators of these heinous crimes to justice. Moreover, noting the serious flaws observed in the judicial process, as already observed by the Supreme Court, the Conference Committee indicated that it expected that the criminal charges against those earlier convicted for these murders would be immediately dropped and that the Supreme Court would rapidly review the appeal by Thach Saveth and ensure his release.

Trade union rights and civil liberties. In its previous observation, the Committee urged the Government to take all the necessary measures to ensure that the trade union rights of workers were fully respected and that trade unionists were able to engage in their activities in a climate free of intimidation and risk. The Committee takes note of the comments made by the ITUC as well as of the discussion during the Conference Committee, regarding the persistent climate of violence and intimidation towards union members. The Committee recalls, once again, that freedom of association can only be exercised in a climate that is free from violence, pressure or threats of any kind against leaders and members of workers’ organizations and that detention of trade unionists for reasons connected with their activities in defence of the interests of workers, constitutes a serious interference with civil liberties in general and with trade union rights in particular. The Committee further recalls that workers have the right to participate in peaceful demonstrations to defend their occupational interests. In light of the above, the Committee once again urges the Government to take all the necessary measures, in the very near future, to ensure that trade union rights of workers are fully respected and that trade unionists are able to engage in their activities in a climate free of intimidation and risk to their personal security and their lives, in accordance with the abovementioned principles.

As regards the murders of trade unionists Chea Vichea, Ros Sovannareth and Hy Vuthy, in its previous observation the Committee requested the Government, to take concrete and tangible steps, as a matter of urgency, to carry out independent inquiries and to facilitate an expedited review of the convictions of Born Samnang and Sok Sam Oeun for the murder of Chea Vichea as well as of the conviction of Thach Saveth for the murder of Ros Sovannareth, and to take steps for their release pending the outcome of the above independent inquiries. The Committee notes that the Government indicated during the discussions in the Conference Committee that Born Samnang and Sok Sam Oeun had been released on bail, pending the re-hearing of their case by the Appeal Court, after the Supreme Court found inadequacies in the criminal procedure. The Government adds in its report that it had not received information on the prospective date of the re-hearing. The Committee notes that the FTUWKC indicates that, while on 17 August 2009, the Appeal Court ordered Chea Vichea’s case to be reopened for further investigation, no subsequent inquiries were carried out. The Committee notes with concern that the Government does not provide any information in its report on any progress made with regard to the investigations into these three murders. The Committee therefore once again urges the Government to bring an end to impunity by taking the necessary steps, as a matter of urgency, to ensure full and impartial investigations into the murders of the abovementioned trade union leaders and to bring, not only the perpetrators, but also the instigators of these heinous crimes to justice. In particular, the Committee urges the Government to provide, with its next report, precise and detailed information on:

(i)    the steps taken to exonerate Born Samnang and Sok Sam Oeun of all charges brought against them and to return the bail paid, as well as to reopen a full investigation into the murder of Chea Vichea as requested by the Supreme Court;

(ii)   the awaited review by the Supreme Court of the decision of the Appeal Court regarding the conviction of Thach Saveth for the murder of Ros Sovannareth, and the opening of an investigation into that crime; and

(iii)  the outcome of the investigation into the murder of Hy Vuthy.

Independence of the judiciary. In its previous observation, the Committee, noting the conclusions of the ILO direct contacts mission of April 2008, referring to serious problems of capacity and lack of independence of the judiciary, requested the Government to take concrete and tangible steps, as a matter of urgency, to ensure the independence and effectiveness of the judicial system, including capacity-building measures and the institution of safeguards against corruption. In this regard, the Committee notes the report of the UN Special Rapporteur on the situation of human rights in Cambodia of 16 September 2010, which recommends various steps to enhance the independence of the judiciary and, in particular, the adoption without delay of the Law on the Status of Judges and Prosecutors and the Law on the Organization and Functioning of the Courts. The Committee requests the Government to provide, with its next report, information on the measures taken or contemplated to ensure the independence and effectiveness of the judicial system, in particular as regards the adoption of the Law on the Status of Judges and Prosecutors and the Law on the Organization and Functioning of the Courts, together with a copy of the relevant legislations.

Rule of law and legislative developments. Finally, the Committee notes that the Government recalled during the discussions in the Conference Committee that: (i) it was considering the creation of a labour court in accordance with international standards; and (ii) the draft Trade Union Law on which it is working in cooperation with the ILO will be adopted by Parliament in 2011 and it expects the law to guarantee the right of workers and employers to organize and bargain collectively. The Government adds in its report that the Working Group of the Ministry of Labour and Vocational Training has finished its review of the draft Trade Union Law consisting of 17 chapters (90 articles), that the draft has now been sent to the ILO for review, that it will then be brought to consult with workers’ and employers’ associations separately and that it will then be put in the open multi-party meeting (gathering representatives of Government’s institutions, trade unions, employer associations and international organizations, including the ILO and the International Finance Corporation (World Bank Group)). The Committee requests the Government to provide, with its next report, information on the creation of the labour court and the adoption of the Trade Union Law, as well as on the consultation processes held in that respect.

Recalling its request to the Government to make every effort to take the necessary action to bring its legislation into conformity with the Convention, the Committee reminds the Government that, if it so wishes, it may have recourse to the technical assistance of the Office.

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

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. Previously, the Committee had requested the Government to provide copies of the laws providing for the right to establish and join organizations of judges, as well as temporary and permanently appointed officials in the public service. In this regard, the Committee notes that the Government does not refer to any laws specifically covering the above categories of public employee, but instead reiterates that employees of the legislature and judiciary are not covered by the Common Statutes for Civil Servants. In these circumstances, the Committee recalls that with the exception of the members of the police and the armed forces, the guarantee of the right of association should apply to all workers, including public servants and officials. All public servants and officials should have the right to establish occupational organizations, irrespective of whether they are engaged in the state administration, are officials of bodies which provide important public services or are employed in state-owned economic undertakings (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 48, 49 and 55). Moreover, all workers, whether they are employed on a permanent or temporary basis, should have the right to establish and join organizations of their own choosing. The Committee therefore asks the Government to take the necessary legislative measures so as to ensure that judges and temporarily and permanently appointed officials in the public service enjoy the right to establish and join organizations. Further noting the Government’s indication that “civil servants of the legislative order” – also excluded from the provisions of the Common Statutes for Civil Servants – are employees of the Secretariats of the National Assembly and Senate, the Committee requests the Government to indicate the legislation which ensures that these categories of public employee enjoy the right to establish and join organizations, and to provide copies of the relevant legislation.

Right of workers to establish organizations without previous authorization. The Committee had previously noted section 268 of the Labour Law concerning the registration procedure and requested the Government to provide details on the registration procedure and, in particular, to indicate whether workers’ and employers’ organizations might be refused registration. The Government indicates, in this regard, that new criteria and procedures relating to registration are set out in Prakas No. 021, dated 15 February 2006. The Government further states that if the authorities do not reply within two months after receipt of an organization’s registration form, the organization is considered to be registered. While noting these indications, the Committee nevertheless observes that Prakas No. 021 of 2006 does not state whether organizations’ requests for registration might be refused, and on what basis. Accordingly, the Committee requests the Government to indicate whether workers’ and employers’ organizations might be refused registration and, if that is the case, to indicate the permissible grounds for such a refusal. It further asks the Government to provide details on the registration procedure and to indicate any cases where registration may have been denied.

Article 3. Right to elect representatives freely. The Committee had previously requested the Government to amend section 269(3) of the Labour Law, which disqualifies persons convicted of any crime from being elected to the post of responsible for the administration and management of a professional organization, as well as section 2(3) of Prakas No. 21 of 2006 on the registration of professional organizations, which provides that persons responsible for the leadership and administration of the organization should never have been convicted of any criminal acts, in order to limit this restriction to convictions clearly touching upon the integrity of the person concerned. The Government had indicated in this regard that these matters would be addressed in the upcoming Trade Union Law. In these circumstances, the Committee expresses the hope that under the Trade Union Law persons may only be disqualified from holding trade union office for convictions clearly touching upon the integrity of the person concerned. It requests the Government to indicate the progress made with respect to the drafting of the Trade Union Law and to provide it with a copy upon its adoption.

The Committee had also previously requested the Government to amend section 269(4) of the Labour Law, which requires trade union members to be engaged in the profession or the job for at least one year before being elected to trade union office. The Committee had noted the Government’s indication that the purpose of that requirement is to ensure that trade union officials possess knowledge and experience. The Government had further indicated that it would consider amending section 269(4), although it did not presently intend to do so. In this regard, the Committee recalls that provisions of this type infringe the organizations’ right to elect representatives in full freedom by preventing qualified persons from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons among their own ranks. In order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey, op. cit., paragraph 117). Accordingly, the Committee requests the Government to amend section 269(4) of the Labour Law in order to bring it into conformity with the Convention, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have been engaged in the industry for less than one year and those who have previously been employed in the organization concerned.

Right to strike. Previously, the Committee had requested the Government to amend section 326(1) of the Labour Law, which provides that a minimum service should be arranged in the enterprise where a strike is taking place and if there is no agreement between the parties to the dispute, that the Ministry of Labour shall determine the minimum services in question. The Committee noted the Government’s indication that in drafting the Trade Union Law it would consider defining “minimum services” narrowly, so as to refer only to minimum services to ensure public safety or protection against destruction of productive assets, or in public utilities. The Government had further indicated that it would consider empowering the Arbitration Council or another independent arbitrator to determine minimum services under the Trade Union Law. In these circumstances, the Committee recalls that the authorities may establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. Minimum services could be appropriate in situations in which a substantial restriction or a total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption (see General Survey, op. cit., paragraphs 160 and 162). The Committee trusts that minimum services provided for under the Trade Union Law will be in keeping with the abovementioned principles. Moreover, the Committee once again requests the Government to take the necessary measures to: (1) amend section 326(2) of the Labour Law, which provides that workers who are required to provide minimum service and who do not appear for such work are considered guilty of serious misconduct; and (2) amend the legislation so as to ensure that any disagreement concerning the establishment of minimum services is settled by an independent body having the confidence of all the parties to the dispute, and not the executive or administrative authority.

Article 5. Right of organization to affiliate with international organizations. The Committee had previously requested the Government to indicate whether the unions of professional organizations have the right to affiliate with international organizations, and to specify the relevant legislative provisions. The Government had indicated in this respect that although no legal provisions provide for this right at present, in practice many trade unions are affiliated with international organizations. Further noting the Government’s indication that the Trade Union Law would include a provision guaranteeing this right, the Committee requests the Government to indicate the progress made in this regard.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the comments submitted in August 2009 by the International Trade Union Confederation (ITUC) and the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC), concerning acts of violence, and harassment against trade union leaders and trade unionists, as well as other violations of the Convention. The Committee requests the Government to send its observations thereon. The Committee further notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2318 (351st Report).

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

In its previous comment, the Committee had taken note of the discussion on Cambodia in the Conference Committee on the Application of Standards in 2007, and in particular that the Conference Committee had expressed its deep concern at the statements made concerning the assassination of the trade unionists Chea Vichea, Ros Sovannareth, and Hy Vuthy; death threats; and the emerging climate of impunity in the country. The Conference Committee, recalling that the rights of workers’ and employers’ organizations could only be exercised in a climate free from violence, pressure or threats of any kind against the leaders and members of these organizations, had called upon the Government to take the necessary measures to ensure respect for this fundamental principle and bring an end to impunity; it further urged the Government to take steps immediately to ensure full and independent investigations into the murders of the abovementioned Cambodian trade union leaders so as to bring not only the perpetrators, but also the instigators of these heinous crimes to justice.

Having also noted the ITUC’s comments on the irregularities that had attended the trials of Born Samnang and Sok Sam Oeun, the two men convicted of Chea Vichea’s murder despite substantial evidence of their innocence, and numerous acts of harassment and violence against trade union leaders, the Committee had urged the Government to take the necessary measures, including the initiation of judicial inquiries, to bring an end to the acts of violence and intimidation against trade union officials and members. Finally, the Committee had noted the Government’s acceptance of an ILO direct contacts mission, as requested by the Conference Committee, and had expressed the firm hope that the mission would achieve significant results in respect of all of the serious matters raised above.

Against this backdrop, the Committee notes with concern that according to the FTUWKC, a campaign of systematic violence and repression has been carried out against it in one factory, comprising vicious attacks on union leaders by gangs outside the factory; the violent dispersal of a FTUWKC rally, in which one worker was shot in the back by the police and 16 trade unionists were arrested and detained; the dismissal of 1,500 workers following the protest, virtually all of whom were FTUWKC leaders or members; and the subsequent blacklisting of the dismissed individuals by the management, which had distributed their names and photos to other factories. The FTUWKC also asserts that the authorities have done little to investigate the serious injuries inflicted on union leaders, and in fact have been regularly involved in the violent suppression of worker protests, strikes and marches at various factories.

The ITUC also indicates that in many factories trade unionists continue to face repression of all kinds, with virtually no intervention from the authorities. Anti-union acts include beatings from hired thugs, death threats, blacklisting, the bringing of trade unionists before the courts on false charges, wage deductions and exclusion from promotion. One FTUWKC leader was beaten by four or five masked individuals armed with iron rods on his way home from work. The ITUC also refers to the continued obstruction of the activities of the Cambodian Independent Teachers’ Association (CITA), which the Government does not recognize as a trade union and whose demonstrations and protests have often been prohibited. Another organization, the Cambodian Independent Civil Service Association (CICSA), is also not recognized as a trade union.

Finally, the Committee takes note of the report of the direct contacts mission to Cambodia, held on 21 to 25 April 2008. The Committee notes with grave concern that the mission report contains, inter alia, the following conclusions: (1) that the Cambodian judiciary is plagued by serious problems of capacity and a lack of independence, (2) that the conviction of Born Samnang and Sok Sam Oeun for the murder of trade union leader Chea Vichea was upheld on 12 April 2007, in a trial marked by procedural irregularities, including the Court’s refusal to entertain evidence of their innocence; (3) that Thach Saveth was sentenced to 15 years in prison for the murder of trade union leader Ros Sovannareth; and (4) that no concrete steps had been indicated by the Government to ensure a meaningful and independent review of the outstanding cases. The Committee notes with concern, moreover, that it has received no information on any progress made in the investigation respecting Hy Vuthy.

In these circumstances, the Committee can only deplore the absence of any further developments in this regard in the Government’s report, six months after the direct contacts mission. It requests the Government to take the necessary measures to take concrete and tangible steps, as a matter of urgency: (1) to carry out independent inquiries, as a matter of urgency, into the murders of Chea Vichea, Ros Sovannareth and Hy Vuthy; (2) to facilitate an expedited review of the convictions of Born Samnang and Sok Sam Oeun for the murder of Chea Vichea, as well as the conviction of Thach Saveth for the murder of Ros Sovannareth, and to take steps for their release pending the outcome of the above independent inquiries; (3) to take the necessary steps to ensure the independence and effectiveness of the judicial system, including capacity-building measures and the institution of safeguards against corruption. In this regard, the Committee suggests that the Government have recourse to the technical cooperation facilities of the Office, notably in the area of reinforcing institutional capacity, as well as with respect to the establishment of labour courts and the revision of the Law on Trade Unions. Finally, it urges the Government, as also requested by the Committee on Freedom of Association, to take all necessary measures to ensure that the trade union rights of workers in Cambodia are fully respected and that trade unionists are able to exercise their activities in a climate free of intimidation and risk to their personal security and their lives.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

The Committee notes the conclusions and recommendations made by the Committee on Freedom of Association in Case No. 2318 and in particular the decision of the Supreme Court on 31 December 2008 ordering the release of Born Samnang and Sok Sam Oeun. Observing in this regard that the Supreme Court had also ordered the reopening of the investigation into Chea Vichea’s murder, the Committee, like the Committee on Freedom of Association, urges the Government to ensure that the investigation is prompt, independent and expeditiously carried out, and to indicate the outcome.

Finally, the Committee notes the Government’s reply to the 2008 comments submitted by the ITUC and the FTUWKC and hopes that the task force which examines the reform of the trade union legislation will take into account all issues raised by the Committee. Furthermore, the Committee notes that the Government indicates that more than 1,000 trade unions have been established and that tripartite activities have been conducted.

[The Government is asked to supply full particulars to the Conference at its 99th Session and to reply in detail to the present comments in 2010.]

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. Previously, the Committee had requested the Government to provide copies of the laws providing for the right to establish and join organizations of judges, as well as temporary and permanently appointed officials in the public service. In this regard, the Committee notes that the Government does not refer to any laws specifically covering the above categories of public employee, but instead reiterates that employees of the legislature and judiciary are not covered by the Common Statutes for Civil Servants. In these circumstances, the Committee recalls that with the exception of the members of the police and the armed forces, the guarantee of the right of association should apply to all workers, including public servants and officials. All public servants and officials should have the right to establish occupational organizations, irrespective of whether they are engaged in the state administration, are officials of bodies which provide important public services or are employed in state-owned economic undertakings (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 48, 49 and 55). Moreover, all workers, whether they are employed on a permanent or temporary basis, should have the right to establish and join organizations of their own choosing. The Committee therefore asks the Government to take the necessary legislative measures so as to ensure that judges and temporarily and permanently appointed officials in the public service enjoy the right to establish and join organizations. Further noting the Government’s indication that “civil servants of the legislative order” – also excluded from the provisions of the Common Statutes for Civil Servants – are employees of the Secretariats of the National Assembly and Senate, the Committee requests the Government to indicate the legislation which ensures that these categories of public employee enjoy the right to establish and join organizations, and to provide copies of the relevant legislation.

Right of workers to establish organizations without previous authorization  The Committee had previously noted section 268 of the Labour Law concerning the registration procedure and requested the Government to provide details on the registration procedure and, in particular, to indicate whether workers’ and employers’ organizations might be refused registration. The Government indicates, in this regard, that new criteria and procedures relating to registration are set out in Prakas No. 021, dated 15 February 2006. The Government further states that if the authorities do not reply within two months after receipt of an organization’s registration form, the organization is considered to be registered. While noting these indications, the Committee nevertheless observes that Prakas No. 021 of 2006 does not state whether organizations’ requests for registration might be refused, and on what basis. Accordingly the Committee requests the Government to indicate whether workers’ and employers’ organizations might be refused registration and, if that is the case, to indicate the permissible grounds for such a refusal. It further asks the Government to provide details on the registration procedure and to indicate any cases where registration may have been denied.

Article 3. Right to elect representatives freely. The Committee had previously requested the Government to amend section 269(3) of the Labour Law, which disqualifies persons convicted of any crime from being elected to the post of responsible for the administration and management of a professional organization, as well as section 2(3) of Prakas No. 21 of 2006 on the registration of professional organizations, which provides that persons responsible for the leadership and administration of the organization should never have been convicted of any criminal acts, in order to limit this restriction to convictions clearly touching upon the integrity of the person concerned. The Government indicates in this regard that these matters would be addressed in the upcoming Trade Union Law. In these circumstances, the Committee expresses the hope that under the Trade Union Law persons may only be disqualified from holding trade union office for convictions clearly touching upon the integrity of the person concerned. It requests the Government to indicate the progress made with respect to the drafting of the Trade Union Law and to provide it with a copy upon its adoption.

The Committee had also previously requested the Government to amend section 269(4) of the Labour Law, which requires trade union members to be engaged in the profession or the job for at least one year before being elected to trade union office. The Committee notes the Government’s indication that the purpose of that requirement is to ensure that trade union officials possess knowledge and experience. The Government further states that it would consider amending section 269(4), although it did not presently intend to do so. In this regard, the Committee recalls that provisions of this type infringe the organizations’ right to elect representatives in full freedom by preventing qualified persons from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons among their own ranks. In order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey, op. cit., paragraph 117). Accordingly, the Committee requests the Government to amend section 269(4) of the Labour Law in order to bring it into conformity with the Convention, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have been engaged in the industry for less than one year and those who have previously been employed in the organization concerned.

Right to strike. Previously, the Committee had requested the Government to amend section 326(1) of the Labour Law, which provides that a minimum service should be arranged in the enterprise where a strike is taking place and if there is no agreement between the parties to the dispute, that the Ministry of Labour shall determine the minimum services in question. The Committee notes the Government’s indication that in drafting the Trade Union Law it would consider defining “minimum services” narrowly, so as to refer only to minimum services to ensure public safety or protection against destruction of productive assets, or in public utilities. The Government further states that it would consider empowering the Arbitration Council or another independent arbitrator to determine minimum services under the Trade Union Law. In these circumstances, the Committee recalls that the authorities may establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. Minimum services could be appropriate in situations in which a substantial restriction or a total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption (see General Survey, op. cit., paragraphs 160 and 162). The Committee trusts that minimum services provided for under the Trade Union Law will be in keeping with the abovementioned principles. Moreover, the Committee once again requests the Government to take the necessary measures to: (1) amend section 326(2) of the Labour Law, which provides that workers who are required to provide minimum service and who do not appear for such work are considered guilty of serious misconduct; and (2) amend the legislation so as to ensure that any disagreement concerning the establishment of minimum services is settled by an independent body having the confidence of all the parties to the dispute, and not the executive or administrative authority.

Article 5. Right of organization to affiliate with international organizations.  The Committee had previously requested the Government to indicate whether the unions of professional organizations have the right to affiliate with international organizations, and to specify the relevant legislative provisions. The Government states in this respect that although no legal provisions provide for this right at present, in practice many trade unions are affiliated with international organizations. Further noting the Government’s indication that the Trade Union Law would include a provision guaranteeing this right, the Committee requests the Government to indicate the progress made in this regard.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) and the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC), in communications of 29 August 2008. The Committee further notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2318 (351st Report).

In its previous comment, the Committee had taken note of the discussion on Cambodia in the Conference Committee on the Application of Standards in 2007, and in particular that the Conference Committee had expressed its deep concern at the statements made concerning the assassination of the trade unionists Chea Vichea, Ros Sovannareth, and Hy Vuthy; death threats; and the emerging climate of impunity in the country. The Conference Committee, recalling that the rights of workers’ and employers’ organizations could only be exercised in a climate free from violence, pressure or threats of any kind against the leaders and members of these organizations, had called upon the Government to take the necessary measures to ensure respect for this fundamental principle and bring an end to impunity; it further urged the Government to take steps immediately to ensure full and independent investigations into the murders of the abovementioned Cambodian trade union leaders so as to bring not only the perpetrators, but also the instigators of these heinous crimes to justice.

Having also noted the ITUC’s comments on the irregularities that had attended the trials of Born Samnang and Sok Sam Oeun, the two men convicted of Chea Vichea’s murder despite substantial evidence of their innocence, and numerous acts of harassment and violence against trade union leaders, the Committee had urged the Government to take the necessary measures, including the initiation of judicial inquiries, to bring an end to the acts of violence and intimidation against trade union officials and members. Finally, the Committee had noted the Government’s acceptance of an ILO direct contacts mission, as requested by the Conference Committee, and had expressed the firm hope that the mission would achieve significant results in respect of all of the serious matters raised above.

Against this backdrop, the Committee notes with concern that according to the FTUWKC, a campaign of systematic violence and repression has been carried out against it in one factory, comprising vicious attacks on union leaders by gangs outside the factory; the violent dispersal of a FTUWKC rally, in which one worker was shot in the back by the police and 16 trade unionists were arrested and detained; the dismissal of 1,500 workers following the protest, virtually all of whom were FTUWKC leaders or members; and the subsequent blacklisting of the dismissed individuals by the management, which had distributed their names and photos to other factories. The FTUWKC also asserts that the authorities have done little to investigate the serious injuries inflicted on union leaders, and in fact have been regularly involved in the violent suppression of worker protests, strikes and marches at various factories.

The ITUC also indicates that in many factories trade unionists continue to face repression of all kinds, with virtually no intervention from the authorities. Anti-union acts include beatings from hired thugs, death threats, blacklisting, the bringing of trade unionists before the courts on false charges, wage deductions and exclusion from promotion. One FTUWKC leader was beaten by four or five masked individuals armed with iron rods on his way home from work. The ITUC also refers to the continued obstruction of the activities of the Cambodian Independent Teachers’ Association (CITA), which the Government does not recognize as a trade union and whose demonstrations and protests have often been prohibited. Another organization, the Cambodian Independent Civil Service Association (CICSA), is also not recognized as a trade union.

Finally, the Committee takes note of the report of the direct contacts mission to Cambodia, held on 21 to 25 April 2008. The Committee notes with grave concern that the mission report contains, inter alia, the following conclusions: (1) that the Cambodian judiciary is plagued by serious problems of capacity and a lack of independence, (2) that the conviction of Born Samnang and Sok Sam Oeun for the murder of trade union leader Chea Vichea was upheld on 12 April 2007, in a trial marked by procedural irregularities, including the Court’s refusal to entertain evidence of their innocence; (3) that Thach Saveth was sentenced to 15 years in prison for the murder of trade union leader Ros Sovannareth; and (4) that no concrete steps had been indicated by the Government to ensure a meaningful and independent review of the outstanding cases. The Committee notes with concern, moreover, that it has received no information on any progress made in the investigation respecting Hy Vuthy.

In these circumstances, the Committee can only deplore the absence of any further developments in this regard in the Government’s report, six months after the direct contacts mission. It requests the Government to take the necessary measures to take concrete and tangible steps, as a matter of urgency: (1) to carry out independent inquiries, as a matter of urgency, into the murders of Chea Vichea, Ros Sovannareth and Hy Vuthy; (2) to facilitate an expedited review of the convictions of Born Samnang and Sok Sam Oeun for the murder of Chea Vichea, as well as the conviction of Thach Saveth for the murder of Ros Sovannareth, and to take steps for their release pending the outcome of the above independent inquiries; (3) to take the necessary steps to ensure the independence and effectiveness of the judicial system, including capacity-building measures and the institution of safeguards against corruption. In this regard, the Committee suggests that the Government have recourse to the technical cooperation facilities of the Office, notably in the area of reinforcing institutional capacity, as well as with respect to the establishment of labour courts and the revision of the Law on Trade Unions. Finally, it urges the Government, as also requested by the Committee on Freedom of Association, to take all necessary measures to ensure that the trade union rights of workers in Cambodia are fully respected and that trade unionists are able to exercise their activities in a climate free of intimidation and risk to their personal security and their lives.

The Committee is addressing a request on other points directly to the Government.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee had previously requested the Government to amend the legislation so as to ensure that judges as well as temporarily and permanently appointed officials in the public service enjoy the right to establish and join organizations. In this respect, the Committee notes the Government’s indication that judges, temporary and permanently appointed officials in the public service are governed by separate laws of public institutions or ministries that are effective to protect their rights, and that these officials have the right, granted by law, to organize and participate in associations. In order to be able to adequately assess the matter, the Committee requests the Government to provide copies of the laws providing for the right to establish and join organizations of all the categories of public servant referred to above.

The Committee regrets that the Government has not provided information on the other points on the application of the Convention that it had previously raised. The Committee therefore once again requests the Government:

–           to specify the meaning of “civil servants of the legislative order” mentioned in section 1 of the Common Statutes for Civil Servants;

–           to provide details on the registration procedure and, in particular, to indicate whether workers’ and employers’ organizations might be refused registration;

–           to amend section 269(3) of the Labour Law, which disqualifies persons convicted of any crime from being elected to the post of responsible for the administration and management of a professional organization, as well as section 2(3) of Prakas No. 21 of 2006 on the registration of professional organizations, which provides that persons responsible for the leadership and administration of the organization should never have been convicted of any criminal acts, in order to limit this restriction to convictions clearly touching upon the integrity of the person concerned;

–           to amend section 269(4) of the Labour Law, which requires trade union members to be engaged in the profession or the job for at least one year before being elected to trade union office, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have been engaged in the industry for less than one year and those who have previously been employed in the organization concerned;

–           to amend section 326(1), which provides that a minimum service should be arranged in the enterprise where the strike is taking place and if there is no agreement between the parties to the dispute, the Ministry of Labour shall determine the minimum services in question;

–           to amend section 326(2) of the Labour Law, which provides that workers who are required to provide minimum service and who do not appear for such work are considered guilty of serious misconduct;

–           to amend the legislation so as to ensure that any disagreement concerning the establishment of minimum services is settled by an independent body having the confidence of all the parties to the dispute and not the executive or administrative authority; and

–           to indicate whether the unions of professional organizations have the right to affiliate with international organizations, and to specify the relevant legislative provisions.

The Committee expresses the hope that the Government would provide full information on the measures taken or envisaged in respect of all the abovementioned points. Furthermore, the Committee recalls that ILO technical assistance is at its disposal and trusts that the Government will take advantage of it without delay.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report, and the comments submitted by the International Trade Union Confederation (ITUC) in a communication of 28 August 2007. The Committee further notes the discussion in the Conference Committee on the Application of Standards in 2007, and in particular that the Conference Committee had deplored the failure on the part of the Government to provide full reports to the Committee of Experts and expressed its deep concern at the statements made concerning the assassination of the trade unionists Chea Vichea, Ros Sovannareth, and Hy Vuthy; death threats; and the emerging climate of impunity in the country. The Conference Committee had also recalled that the rights of workers’ and employers’ organizations could only be exercised in a climate free from violence, pressure or threats of any kind against the leaders and members of these organizations and called upon the Government to take the necessary measures to ensure respect for this fundamental principle and bring an end to impunity; to this end, it urged the Government to take steps immediately to ensure full and independent investigations into the murders of the abovementioned Cambodian trade union leaders so as to bring not only the perpetrators, but also the instigators of these heinous crimes to justice.

The ITUC refers to the obstruction of the activities of the Cambodian Independent Teachers’ Association (CITA); the conviction, despite a lack of evidence, of union leaders Lach Sambo, Yeom Khun and Sal Koem San for the crime of illegal confinement in connection with a strike; and the refusal by employers to comply with arbitration council orders to reinstate dismissed trade unionists. The ITUC also refers to numerous acts of harassment and violence against trade union leaders and affiliates, including the detainment by the authorities of a Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC) leader, in connection with a 2006 May Day march organized by his union; as well as attacks on FTUWKC officials Chi Simun, Lem Semret, Em Chhay Tieng, Chey Rithy and Yeng Vann Yuth. Finally, the ITUC alleges the introduction of new evidence proving the innocence of the two men convicted in 2005 of the murder of Chea Vichea, president of the FTUWKC. The said evidence includes eyewitness testimony absolving the two men of the murder and testimony from the ex-Chief of the Phnom Penh police corroborating that the two men were framed for the murder. It recalls that it had, on many occasions, stressed the interdependence between civil liberties and trade union rights, emphasizing that a truly free and independent trade union movement can only develop in a climate of respect for fundamental human rights. The exercise of civil liberties in relation to trade union rights should be examined on the basis of the provisions contained in Article 3 of Convention No. 87, and it is in connection with this standard that the respect of certain basic human rights acquires its full importance for trade union life (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 26). The Committee deeply regrets the Government’s lack of reply to the ITUC’s comments, particularly in the light of the gravity of the allegations. In these circumstances, the Committee urges the Government to take the necessary measures, including the initiation of judicial inquiries, to bring an end to the acts of violence and intimidation against trade union officials and members.

The Committee notes that the Conference Committee had urged the Government to accept an ILO direct contacts mission in respect of the serious freedom of association matters raised. In this regard, the Committee notes the Government’s communication of 2 November 2007, wherein the Government indicates that, following a high-level ILO mission to Cambodia in October, it has agreed to an ILO direct contacts mission in March or April 2008. The Committee notes this development with interest and expresses the firm hope that the direct contacts mission will achieve significant results with respect to the serious matters referred to above.

The Committee is addressing a request directly to the Government.

[The Government is asked to reply in detail to the present comments in 2008.]

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes with regret that the Government’s report has not been received. It must therefore once again request the Government:

–         to amend the legislation so as to ensure that judges as well as temporarily and permanently appointed officials in the public service enjoy the right to establish and join organizations;

–         to specify the meaning of “civil servants of the legislative order” mentioned in section 1 of the Common Statutes for Civil Servants;

–         to provide details on the registration procedure and in particular, to indicate whether workers’ and employers’ organizations might be refused registration;

–         to amend section 269(3) of the Labour Law, which disqualifies persons convicted of any crime from being elected for the post of responsible for the administration and management of a professional organization, as well as section 2(3) of Prakas No. 277 on the Registration of Professional Organisations which provides that persons responsible for the leadership and administration of the organization should have never been convicted of any criminal acts, in order to limit this restriction to convictions clearly touching upon the integrity of the person concerned;

–         to amend section 269(4) of the Labour Law, which requires trade union members to be engaged in the profession or the job for at least one year before being elected to trade union office, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have been engaged in the industry for less than one year and those who have previously been employed in the organization concerned;

–         to amend section 326(1), which provides that a minimum service should be arranged in the enterprise where the strike is taking place and if there is no agreement between the parties to the dispute, the Ministry of Labour shall determine the minimum services in question;

–         to amend section 326(2) of the Labour Law, which provides that workers who are required to provide minimum service and who do not appear for such work are considered guilty of serious misconduct;

–         to amend the legislation so as to ensure that any disagreement concerning the establishment of minimum services is settled by an independent body having the confidence of all the parties to the dispute and not the executive or administrative authority; and

–         to indicate whether the unions of professional organizations have the right to affiliate with international organizations, and to specify the relevant legislative provisions.

The Committee requests the Government to keep it informed on the measures taken or envisaged in respect of all the abovementioned points. Furthermore, the Committee recalls that ILO technical assistance is at its disposal and trusts that the Government will take advantage of it without delay.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes with regret that the Government’s report has not been received.

The Committee notes the comments on the application of the Convention submitted by the International Confederation of Free Trade Unions (ICFTU) in a communication of 10 August 2006. The ICFTU refers to matters already raised and alleges a permanent harassment against the Cambodian Independent Teachers’ Association, the arrests and disappearance of trade union leaders, police and military violence against strikers and the conviction of two innocent men for the murder of a trade union leader. In this respect, the Committee recalls that the right of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against leaders and members of these organizations and it is for governments to ensure that this principle is respected. The Committee requests the Government to send its observations on all these serious comments, as well as on the ICFTU comments of 2005 (the exclusion of civil servants from the scope of the Labour Law, the limitations to the right to elect union representatives freely and the restrictions to the right to strike notably by imposing a minimum service requirement in all enterprises regardless of whether they are public utilities, the non-recognition of the Cambodian Construction Trade Union Federation (CCTUF), the murder of two trade union leaders, threats against unionists, intimidation, harassment and physical attacks and that strikes and protests met with violent police repression).

The Committee is addressing a request directly to the Government.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes with regret that the Government’s report has not been received. It must therefore once again request the Government:

–      to amend the legislation so as to ensure that judges as well as temporarily and permanently appointed officials in the public service enjoy the right to establish and join organizations;

–      to specify the meaning of “civil servants of the legislative order” mentioned in section 1 of the Common Statutes for Civil Servants;

–      to provide details on the registration procedure and in particular, to indicate whether workers’ and employers’ organizations might be refused registration;

–      to amend section 269(3) of the Labour Law, which disqualifies persons convicted of any crime from being elected for the post of responsible for the administration and management of a professional organization, as well as section 2(3) of Prakas No. 277 on the Registration of Professional Organisations which provides that persons responsible for the leadership and administration of the organization should have never been convicted of any criminal acts, in order to limit this restriction to convictions clearly touching upon the integrity of the person concerned;

–      to amend section 269(4) of the Labour Law, which requires trade union members to be engaged in the profession or the job for at least one year before being elected to trade union office, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have been engaged in the industry for less than one year and those who have previously been employed in the organization concerned;

–      to amend section 326(1), which provides that a minimum service should be arranged in the enterprise where the strike is taking place and if there is no agreement between the parties to the dispute, the Ministry of Labour shall determine the minimum services in question;

–      to amend section 326(2) of the Labour Law, which provides that workers who are required to provide minimum service and who do not appear for such work are considered guilty of serious misconduct;

–      to amend the legislation so as to ensure that any disagreement concerning the establishment of minimum services is settled by an independent body having the confidence of all the parties to the dispute and not the executive or administrative authority; and

–      to indicate whether the unions of professional organizations have the right to affiliate with international organizations, and to specify the relevant legislative provisions.

The Committee requests the Government to keep it informed on the measures taken or envisaged in respect of all of the above-mentioned points.

The Committee further notes the comments on the application of the Convention submitted by the International Confederation of Free Trade Unions (ICFTU) in a communication of 31 August 2005. The Committee notes that these comments concern legislative issues raised in its previous direct request and, more particularly, the exclusion of civil servants from the scope of the Labour Law, the limitations to the right to elect union representatives freely and the restrictions to the right to strike notably by imposing a minimum service requirement in all enterprises regardless of whether they are public utilities. The ICFTU furthermore alleges that although affiliates of the Cambodian Construction Trade Union Federation (CCTUF) had gained the most representative status at the Angkor Wat conservation project site, management refuses to recognize and negotiate with it. The ICFTU also underlines that two trade union leaders were murdered, that unionists faced threats, intimidation, harassment, and physical attacks and that strikes and protests met with violent police repression. The Committee requests the Government to communicate its observations thereon.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 2 of the Convention. (a) Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee notes that some categories of workers, which include judges, temporarily and permanently appointed officials in the public service as well as persons governed by the Common Statutes for Civil Servants or by the Diplomatic Statutes, are not covered by the provisions on freedom of association of the Labour Law. The Committee notes the Government’s indication that under the Common Statutes for Civil Servants, civil servants have the right to be members or participate in the administration of associations authorized by law. However, the Committee notes that section 1 of the Common Statutes for Civil Servants do not apply to civil servants of the legislative order. The Committee recalls that with the exception of the members of the police and the armed forces, the guarantee of the right of association should apply to all workers, including public servants and officials. All public servants and officials should have the right to establish occupational organizations, irrespective of whether they are engaged in the state administration, are officials of bodies which provide important public services or are employed in state-owned economic undertakings (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 48, 49 and 55). Moreover, all workers, whether they are employed on a permanent or temporary basis, should have the right to establish and join organizations of their own choosing. The Committee therefore asks the Government to amend its legislation so as to ensure that judges and temporarily and permanently appointed officials in the public service enjoy the right to establish and join organizations. It further requests the Government to classify the meaning of "civil servants of the legislative order" mentioned in section 1 of the Common Statutes for Civil Servants.

(b) Right of workers to establish organizations without previous authorization. The Committee notes section 268 of the Labour Law concerning the registration procedure. The Committee notes that the legislation does not state whether organizations’ requests for registration might be refused, and on what basis. The Committee requests the Government to indicate whether workers’ and employers’ organizations might be refused registration and, if that is the case, to indicate the permissible grounds for such a refusal. It further asks the Government to provide details on the registration procedure and to indicate any cases where registration may have been denied.

Article 3. (a) Right to elect their representatives freely. The Committee notes that section 269(3) of the Labour Law disqualifies persons convicted of any crime from being elected for the post of responsible for the administration and management of a professional organization. Furthermore, section 2(3) of Prakas No. 277 on the registration of professional organizations provides that persons responsible for the leadership and administration of the organization should have never been convicted of any criminal acts. In this respect, the Committee recalls that conviction for an act the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from trade union office. Thus, the legislation, which establishes excessively broad ineligibility criteria, for example by means of a long list including acts which have no real connection with the qualities of integrity required for the exercise of trade union office, is incompatible with the Convention (see General Survey, 1994, paragraph 120). The Committee therefore requests the Government to amend section 269(3) of the Labour Law and section 2(3) of Prakas No. 277 so as to limit this restriction to convictions clearly touching upon the integrity of the person concerned.

Furthermore, the Committee notes section 269(4) of the Labour Law, which requires that the members responsible for the administration and management of a professional organization shall, at the time of their election, have been engaged in the profession or the job for at least one year. In this respect, the Committee considers that provisions of this type infringe the organizations’ right to elect representatives in full freedom by preventing qualified persons from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons among their own ranks. In order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey, paragraph 117). The Committee therefore requests the Government to amend its legislation in order to bring it into conformity with the Convention, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have been engaged in the industry for less than one year and those who have previously been employed in the organization concerned.

(b) Right to strike. The Committee notes that according to section 326(1) of the Labour Law, a minimum service should be arranged in the enterprise where the strike is taking place and if there is no agreement between the parties to the dispute, the Ministry of Labour shall determine the minimum services in question. Section 326(2) provides that workers who are required to provide minimum service and who do not appear for such work are considered guilty of serious misconduct. Furthermore, section 334 allows the employer to replace workers who are required to provide minimum services and who do not appear for such work. In this respect, the Committee recalls that the authorities may establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. Minimum services could be appropriate in situations in which a substantial restriction or a total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption (see General Survey, 1994, paragraphs 160 and 162). The Committee therefore requests the Government to amend its legislation so as to ensure that the requirement to establish minimum services is limited to the abovementioned cases, particularly in light of the serious consequences for failure to ensure such services under section 326(2) and the rights afforded to employers under section 334 to hire replacements where minimum services have not been provided. As regards the provision under which any disagreement concerning the establishment of minimum services should be settled by the Ministry of Labour, the Committee requests the Government to amend its legislation so as to ensure that any such disagreement is settled by an independent body having the confidence of all the parties to the dispute and not the executive or administrative authority and to keep it informed of measures taken or envisaged in this regard.

Article 5. Right of organization to affiliate with international organizations. The Committee requests the Government to indicate whether the unions of professional organizations have the right to affiliate with international organizations, and to specify the relevant legislative provisions.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 2 of the Convention. (a) Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee notes that some categories of workers, which include judges, temporarily and permanently appointed officials in the public service as well as persons governed by the Common Statutes for Civil Servants or by the Diplomatic Statutes, are not covered by the provisions on freedom of association of the Labour Law. The Committee notes the Government’s indication that under the Common Statutes for Civil Servants, civil servants have the right to be members or participate in the administration of associations authorized by law. However, the Committee notes that section 1 of the Common Statutes for Civil Servants do not apply to civil servants of the legislative order. The Committee recalls that with the exception of the members of the police and the armed forces, the guarantee of the right of association should apply to all workers, including public servants and officials. All public servants and officials should have the right to establish occupational organizations, irrespective of whether they are engaged in the state administration, are officials of bodies which provide important public services or are employed in state-owned economic undertakings (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 48, 49 and 55). Moreover, all workers, whether they are employed on a permanent or temporary basis, should have the right to establish and join organizations of their own choosing. The Committee therefore asks the Government to amend its legislation so as to ensure that judges and temporarily and permanently appointed officials in the public service enjoy the right to establish and join organizations. It further requests the Government to classify the meaning of "civil servants of the legislative order" mentioned in section 1 of the Common Statutes for Civil Servants.

(b) Right of workers to establish organizations without previous authorization. The Committee notes section 268 of the Labour Law concerning the registration procedure. The Committee notes that the legislation does not state whether organizations’ requests for registration might be refused, and on what basis. The Committee requests the Government to indicate whether workers’ and employers’ organizations might be refused registration and, if that is the case, to indicate the permissible grounds for such a refusal. It further asks the Government to provide details on the registration procedure and to indicate any cases where registration may have been denied.

Article 3. (a) Right to elect their representatives freely. The Committee notes that section 269(3) of the Labour Law disqualifies persons convicted of any crime from being elected for the post of responsible for the administration and management of a professional organization. Furthermore, section 2(3) of Prakas No. 277 on the registration of professional organizations provides that persons responsible for the leadership and administration of the organization should have never been convicted of any criminal acts. In this respect, the Committee recalls that conviction for an act the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from trade union office. Thus, the legislation, which establishes excessively broad ineligibility criteria, for example by means of a long list including acts which have no real connection with the qualities of integrity required for the exercise of trade union office, is incompatible with the Convention (see General Survey, 1994, paragraph 120). The Committee therefore requests the Government to amend section 269(3) of the Labour Law and section 2(3) of Prakas No. 277 so as to limit this restriction to convictions clearly touching upon the integrity of the person concerned.

Furthermore, the Committee notes section 269(4) of the Labour Law, which requires that the members responsible for the administration and management of a professional organization shall, at the time of their election, have been engaged in the profession or the job for at least one year. In this respect, the Committee considers that provisions of this type infringe the organizations’ right to elect representatives in full freedom by preventing qualified persons from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons among their own ranks. In order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey, paragraph 117). The Committee therefore requests the Government to amend its legislation in order to bring it into conformity with the Convention, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have been engaged in the industry for less than one year and those who have previously been employed in the organization concerned.

(b) Right to strike. The Committee notes that according to section 326(1) of the Labour Law, a minimum service should be arranged in the enterprise where the strike is taking place and if there is no agreement between the parties to the dispute, the Ministry of Labour shall determine the minimum services in question. Section 326(2) provides that workers who are required to provide minimum service and who do not appear for such work are considered guilty of serious misconduct. Furthermore, section 334 allows the employer to replace workers who are required to provide minimum services and who do not appear for such work. In this respect, the Committee recalls that the authorities may establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. Minimum services could be appropriate in situations in which a substantial restriction or a total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption (see General Survey, 1994, paragraphs 160 and 162). The Committee therefore requests the Government to amend its legislation so as to ensure that the requirement to establish minimum services is limited to the abovementioned cases, particularly in light of the serious consequences for failure to ensure such services under section 326(2) and the rights afforded to employers under section 334 to hire replacements where minimum services have not been provided. As regards the provision under which any disagreement concerning the establishment of minimum services should be settled by the Ministry of Labour, the Committee requests the Government to amend its legislation so as to ensure that any such disagreement is settled by an independent body having the confidence of all the parties to the dispute and not the executive or administrative authority and to keep it informed of measures taken or envisaged in this regard.

Article 5. Right of organization to affiliate with international organizations. The Committee requests the Government to indicate whether the unions of professional organizations have the right to affiliate with international organizations, and to specify the relevant legislative provisions.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes with interest the information contained in the Government’s first report. It wishes to raise a certain number of points concerning the application of the following Articles of the Convention.

Article 2 of the Convention. (a) Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee notes that some categories of workers, which include judges, temporarily and permanently appointed officials in the public service as well as persons governed by the Common Statutes for Civil Servants or by the Diplomatic Statutes, are not covered by the provisions on freedom of association of the Labour Law. The Committee notes the Government’s indication that under the Common Statutes for Civil Servants, civil servants have the right to be members or participate in the administration of associations authorized by law. However, the Committee notes that section 1 of the Common Statutes for Civil Servants do not apply to civil servants of the legislative order. The Committee recalls that with the exception of the members of the police and the armed forces, the guarantee of the right of association should apply to all workers, including public servants and officials. All public servants and officials should have the right to establish occupational organizations, irrespective of whether they are engaged in the state administration, are officials of bodies which provide important public services or are employed in state-owned economic undertakings (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 48, 49 and 55). Moreover, all workers, whether they are employed on a permanent or temporary basis, should have the right to establish and join organizations of their own choosing. The Committee therefore asks the Government to amend its legislation so as to ensure that judges and temporarily and permanently appointed officials in the public service enjoy the right to establish and join organizations. It further requests the Government to classify the meaning of "civil servants of the legislative order" mentioned in section 1 of the Common Statutes for Civil Servants.

(b) Right of workers to establish organizations without previous authorization. The Committee notes section 268 of the Labour Law concerning the registration procedure. The Committee notes that the legislation does not state whether organizations’ requests for registration might be refused, and on what basis. The Committee requests the Government to indicate whether workers’ and employers’ organizations might be refused registration and, if that is the case, to indicate the permissible grounds for such a refusal. It further asks the Government to provide details on the registration procedure and to indicate any cases where registration may have been denied.

Article 3. (a) Right to elect their representatives freely. The Committee notes that section 269(3) of the Labour Law disqualifies persons convicted of any crime from being elected for the post of responsible for the administration and management of a professional organization. Furthermore, section 2(3) of Prakas No. 277 on the registration of professional organizations provides that persons responsible for the leadership and administration of the organization should have never been convicted of any criminal acts. In this respect, the Committee recalls that conviction for an act the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from trade union office. Thus, the legislation, which establishes excessively broad ineligibility criteria, for example by means of a long list including acts which have no real connection with the qualities of integrity required for the exercise of trade union office, is incompatible with the Convention (see General Survey, 1994, paragraph 120). The Committee therefore requests the Government to amend section 269(3) of the Labour Law and section 2(3) of Prakas No. 277 so as to limit this restriction to convictions clearly touching upon the integrity of the person concerned.

Furthermore, the Committee notes section 269(4) of the Labour Law, which requires that the members responsible for the administration and management of a professional organization shall, at the time of their election, have been engaged in the profession or the job for at least one year. In this respect, the Committee considers that provisions of this type infringe the organizations’ right to elect representatives in full freedom by preventing qualified persons from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons among their own ranks. In order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey, paragraph 117). The Committee therefore requests the Government to amend its legislation in order to bring it into conformity with the Convention, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have been engaged in the industry for less than one year and those who have previously been employed in the organization concerned.

(b) Right to strike. The Committee notes that according to section 326(1) of the Labour Law, a minimum service should be arranged in the enterprise where the strike is taking place and if there is no agreement between the parties to the dispute, the Ministry of Labour shall determine the minimum services in question. Section 326(2) provides that workers who are required to provide minimum service and who do not appear for such work are considered guilty of serious misconduct. Furthermore, section 334 allows the employer to replace workers who are required to provide minimum services and who do not appear for such work. In this respect, the Committee recalls that the authorities may establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. Minimum services could be appropriate in situations in which a substantial restriction or a total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption (see General Survey, 1994, paragraphs 160 and 162). The Committee therefore requests the Government to amend its legislation so as to ensure that the requirement to establish minimum services is limited to the abovementioned cases, particularly in light of the serious consequences for failure to ensure such services under section 326(2) and the rights afforded to employers under section 334 to hire replacements where minimum services have not been provided. As regards the provision under which any disagreement concerning the establishment of minimum services should be settled by the Ministry of Labour, the Committee requests the Government to amend its legislation so as to ensure that any such disagreement is settled by an independent body having the confidence of all the parties to the dispute and not the executive or administrative authority and to keep it informed of measures taken or envisaged in this regard.

Article 5. Right of organization to affiliate with international organizations. The Committee requests the Government to indicate whether the unions of professional organizations have the right to affiliate with international organizations, and to specify the relevant legislative provisions.