Informe provisional - Informe núm. 311, Noviembre 1998

Caso núm. 1934 (Camboya) - Fecha de presentación de la queja:: 08-JUL-97 - Cerrado

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

1. 111. The Committee examined this case at its November 1997 meeting during which it formulated a number of interim conclusions. (See 308th Report, paras. 85 to 138, approved by the Governing Body at its 270th Session in November 1997.) At its meeting in March 1998 (see 309th Report, para. 6), the Committee, having received the Government's partial observations, decided to adjourn its examination of the case. At its meeting in May-June 1998 (see 310th Report, para. 8), the Committee, having received the Government's observations late, proposed to examine them at its next meeting.
2. 112. The Government sent its observations in communications dated 2 December 1997 and 7 May 1998.
3. 113. Cambodia has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 114. The World Confederation of Labour (WCL) submitted allegations of numerous violations of the right to organize and the right to strike and of other trade union rights and civil liberties which have occurred since democratic elections were held in Cambodia. The WCL has claimed that the country's first trade union organization, the Workers' Free Trade Union of the Kingdom of Cambodia (SLORC), which was established in December 1996, has suffered repression by numerous enterprises which have refused to recognize it and has been the target of repressive measures by the State. In addition, the WCL has alleged that, during the strikes that took place at three enterprises (Cambodia Garment Ltd., Gennon Manufacturing and Tack Fat Garment), the Government and the employers employed the security forces on a large scale to suppress the strikes and at peaceful demonstrations by striking workers and that people were injured during these violent acts of repression. It is also alleged that several workers were dismissed following the strikes because of their trade union activities. Finally, the WCL alleged that the Government violated rights guaranteed under Conventions Nos. 87 and 98 by systematically restricting and suppressing the right of workers to organize freely.
2. 115. The Government for its part sent some partial information in explanation of the overall situation in Cambodia with regard to new private enterprises in the clothing industry. The Government acknowledged that there had been abuses with regard to working conditions and stated that measures had been adopted to eliminate these abuses. The Government also stated that a new Labour Code had been officially promulgated in March 1997 and that the competent Minister had been charged with the urgent task of implementing it. However, the Government also pointed out that there was lack of experience and practice in this area and that the labour officials were unable to keep up with the rapid economic development and the growth in the workers' movement. With regard to the establishment of SLORC, the Government claimed that, since the promulgation of the Labour Code, the union has not complied with provisions regarding registration. As regards the strikes at the three enterprises, the Government maintained that SLORC's organization of these strikes and demonstrations did not comply with the law and that acts of violence had been committed at the instigation of the union. Finally, the Government pointed out that the Cambodian authorities had not violated the rights guaranteed under Conventions Nos. 87 and 98 and that they respected the right of citizens to form trade unions without prior authorization. In this regard, the Government explained that, since the new Labour Code had not yet been officially promulgated at the time of the events which gave rise to the complaint, the staff delegates had been recognized as the sole legitimate representatives of the workers.
3. 116. At its November 1997 session, in the light of the Committee's interim conclusions, the Governing Body approved the following recommendations:
   • (a) Concerning the establishment of the Workers' Free Trade Union of the Kingdom of Cambodia (SLORC), the Committee requests the trade union to deposit its rules with the competent authority and the Government to ensure that the organization is registered without delay.
   • (b) Concerning infringements of collective bargaining, the Committee requests the Government to take the necessary measures so that trade unions can promote and defend the interests of workers, especially by means of collective bargaining on working conditions. The Committee also requests the Government to take the necessary measures so that the SLORC can negotiate working conditions in the clothing sector with the employers in this sector.
   • (c) The Committee draws the Government's attention to the importance it attaches to the recognition that the right to strike is a means whereby workers may promote and defend their economic and social interests.
   • (d) The Committee requests the Government to guarantee respect of the principle that measures depriving trade unionists of their freedom on grounds related to their trade union activity, even where they are merely summoned or questioned for a short period, constitute an obstacle to the exercise of trade union rights.
   • (e) Concerning the dismissals of workers, the Committee requests the Government to:
   • (i) carry out an in-depth inquiry into the dismissals at the Tack Fat Garment factory, with a view to the reinstatement in their jobs of these workers determined to be the object of anti-union discrimination and to keep it informed in this respect;
   • (ii) provide full information on the three cases of dismissal concerning trade union activities mentioned in its reply, specifying the circumstances of these dismissals, the outcome of the complaints lodged on this matter and to communicate the decision of the Ministry.
   • (f) Concerning the attacks on workers' integrity and the bad treatment inflicted on them, the Committee requests the Government to take firm and appropriate measures to prevent infringements of basic human rights and to guarantee their respect, in order to bring about the necessary conditions under which workers are able to exercise freely their basic rights and particularly their trade union rights.
   • (g) Noting that the Government has confirmed the temporary detention of three trade unionists, the Committee recalls that the arrest, even if only briefly, of trade union leaders and trade unionists for exercising legitimate trade union activities constitutes a violation of the principles of freedom of association.

B. The Government's new reply

1. 117. In its communications of 2 December 1997 and 7 May 1998, the Government states first that, following the Committee's recommendations, the Labour Inspectorate on 18 March 1998 wrote to SLORC asking the union to deposit its rules for the purpose of registration. According to the Government, the President of SLORC herself collected the letter from the Labour Inspectorate.
2. 118. Secondly, the Government states that the Ministry of Social Affairs, Labour and War Veterans (MASTAC) recently published and implemented a ministerial order concerning procedures for registering and publishing collective agreements and monitoring their implementation. It states that to date a number of works unions and staff delegates have already conducted collective negotiations and concluded collective agreements with employers, with or without the help of labour inspectorate staff. In this regard, the Government states that SLORC cannot enter into collective talks until it is registered. However, the Government also explains that it has no objection to the employer or the Clothing Manufacturers' Association of Cambodia agreeing to talks with SLORC before it is registered, on condition that any collective agreement that might result from such talks should not be enforceable with regard to the other (registered) trade unions. Lastly, the Government states that, to date, 39 works unions in different sectors and one trade union have been registered by MASTAC.
3. 119. With regard to the right to strike, the Government states that the procedures for exercising that right are set out in Chapter XIII of the new Labour Code, and that it has always recognized the right to strike but cannot allow unlawful strikes. In this regard, the Government states that most of the strikes carried out by workers in the clothing factories were carried out without due regard to the procedures stipulated in sections 320 and 324 of the Labour Code, and adds that the strikes carried out by SLORC contravened section 331 of the Labour Code in that they were not peaceful.
4. 120. With regard to measures taken to deprive trade union leaders of their liberty because of their trade union activities, the Government explains that, in order to prevent any recurrences of such cases, it would like the trade unions to obtain the prior consent of company management before engaging in trade union activities during working hours.
5. 121. With regard to the dismissals of workers, the Government refers primarily to its first reply concerning the settlement of the disputes involving two workers at the Gennon Manufacturing factory and 16 workers at the Tack Fat Garment factory. Two other workers, one at the Golden Time factory, the other at Winner Garment, have lodged complaints. The Government explains that in the process of settling these disputes, the complaint of the first worker was regarded as invalid because the complainant had been absent from the conciliation meeting without a valid reason. The second worker received 50 dollars from the employer as compensation for being dismissed. With regard to the dismissal of 13 workers at the Tack Fat Garment factory, the Government states that investigations produced no evidence that the dismissals had been carried out for anti-union motives. On the contrary, the employer had provided documentary evidence that the dismissals had not been for anti-union reasons, and the Government therefore settled these disputes through conciliation. As for the dismissal of three trade union leaders at the clothing factory of SAMHAN Fabrics Co. Ltd., the Government states that two of the workers were dismissed for engaging in trade union activities during working hours without the employer's consent, for slandering management and for taking unauthorized leave, while the third worker was dismissed for failure to comply with disciplinary rules and striking his section chief. The three workers lodged their complaint with the Labour Inspectorate and claimed to have been dismissed by their employer for anti-union reasons. The Government states that, in the absence of adequate evidence of any anti-union motives for these dismissals, it settled the disputes through conciliation. Following conciliation, the employer refused to reinstate the workers but agreed to pay compensation to two of the workers concerned.
6. 122. With regard to the violations of fundamental human rights, in particular trade union rights, the Government states that new measures have been taken to remedy the errors of the past, including the following: the establishment of an inter-ministerial commission to deal with strikes and demonstrations, the commission's permanent secretariat being established within MASTAC; increasing the number of labour inspectors and their resources; increasing the number of inspections in clothing factories; passing a series of ministerial orders to improve implementation of the Labour Code; introducing more severe penalties against employers who break the law, including, where appropriate, suspending exports of their products; and holding regular seminars, including some financed by the ILO, with a view to training the social partners and allowing an exchange of opinions on all matters relating to the rights and interests of workers, trade union activities and conciliation in labour disputes.

C. The Committee's conclusions

1. 123. The Committee recalls that this case concerns allegations of violations of the right freely to establish trade unions and the right to strike and collective bargaining, dismissals of trade unionists and pressure on and threats against them. The Committee also recalls that the alleged acts took place during a transitional period when new labour legislation was about to be adopted but did not come into force until several months after the events which gave rise to the complaint.
2. 124. With regard to recognition of the Workers' Free Trade Union of the Kingdom of Cambodia (SLORC), the Committee recalls that the union was established before the promulgation of the Labour Code. The Government had originally stated that since the promulgation of the Labour Code, the union had failed to implement provisions regarding the registration of trade union rules. However, the Government explains that in March 1998, the Labour Inspectorate wrote to SLORC asking it to deposit its rules with a view to registration and that the President of the union herself collected the letter. The Committee urges the Government to indicate whether or not the union, which was formed almost two years ago when it deposited its rules with the competent authority, has in fact been registered.
3. 125. With regard to infringements of collective bargaining rights, the Committee previously requested the Government to take the necessary measures to allow the trade unions in general to promote and defend workers' interests through collective negotiations and, specifically, to allow SLORC to negotiate working conditions in the clothing industry with the employers. In the light of the Government's new reply, the Committee notes that the Government has recently published and implemented a ministerial order concerning procedures for the registration and publication of trade union rules and for monitoring their implementation. In this regard, the Committee notes that, to date, a number of unions at the enterprise level and workers' representatives have already conducted collective negotiations and concluded collective agreements with the employers. At the same time, the Committee requests the Government to indicate whether negotiations have taken place between SLORC and the employers in the clothing manufacturing sector.
4. 126. As regards the right to strike, the Committee takes note of the provisions of the new Labour Code which guarantee the right to strike and set out implementation procedures. The Committee notes the Government's statements that most of the strikes by clothing factory workers were carried out in contravention of procedures stipulated in the Labour Code, in particular section 324 regarding prior notification. However, the Committee notes that these strikes were started before the promulgation of the new Labour Code and that, consequently, the Government could not cite non-compliance with particular provisions of the Labour Code as grounds for declaring the strikes unlawful. The Committee can only recall once again that it has always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests and requests the Government in this respect to make all efforts to respect the exercise of this right in the future. (See Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, para. 474.)
5. 127. With regard to the dismissals of workers, the Committee had requested the Government to investigate the dismissals at the Tack Fat Garment factory in order to ascertain whether or not there had been anti-union motives for them. The Committee notes that the Government in its reply maintains that investigations carried out by the competent minister produced no evidence that workers were dismissed for anti-union motives. Despite this conclusion, the Committee notes that the Government attempted a conciliation. Following the conciliation process, the employer refused to reinstate the workers concerned. While noting the Government's explanations of the reasons for the dismissals, the Committee recalls that, according to the complainant organization, the reasons given for the dismissals were spurious, the real reason being the workers' strike action. The Committee once again wishes to stress that no one should be penalized for carrying out a legitimate strike and that it may often be difficult, if not impossible, for a worker to furnish proof of an act of anti-union discrimination of which he or she has been the victim. (See Digest, op. cit., paras. 590 and 740.) In this case, the Committee requests the Government to review the situation of the dismissed workers at the Tack Fat Garment factory within the framework of expeditious, inexpensive and impartial procedures aimed at presenting acts of anti-union discrimination and, in the event that the dismissals are found to be related to the exercise of legitimate trade union activities, to obtain the reinstatement in their jobs of the workers in question.
6. 128. As concerns the dismissal of two workers at the Golden Time and Winner Garment factories and the subsequent resolution of these cases, the Committee would like to obtain more specific information on the manner in which these cases were dealt with.
7. 129. With regard to the dismissal of three trade union leaders at the factory of SAMHAN Fabrics Co. Ltd., the Committee notes the Government's explanations regarding the reasons for the dismissals. Once again, the Government maintains that, after having carried out the investigation, it had no sufficient evidence that the dismissals were of an anti-union nature and it therefore settled the disputes through conciliation. The Committee notes that following this conciliation, only two trade union leaders were granted compensation. The Committee recalls, first, that with regard to the reasons for dismissal, the activities of trade union officials should be examined in the context of particular situations which may be especially strained and difficult in cases of labour disputes and strike action. In addition, the Committee stresses that one way of ensuring the protection of trade union officials is to provide that these officials may not be dismissed, either during their period of office or for a certain time thereafter, except for serious misconduct. Finally, the Committee again stresses that it would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker's trade union membership or activities. (See Digest, op. cit., paras. 707, 727 and 731.) The Committee recalls that the existence of general legal provisions prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice. Such protection against acts of anti-union discrimination may thus take various forms adapted to national legislation and practice, provided that they prevent or effectively redress anti-union discrimination, and allow union representatives to be reinstated in their posts and continue to hold their trade union office. The Committee therefore emphasizes the necessity of providing expeditious, inexpensive and impartial means of preventing acts of anti-union discrimination or reducing them as quickly as possible. (See 1994 General Survey on freedom of association and collective bargaining, paras. 214 and 216.) In this respect, the Committee requests the Government to consider adopting measures to reinforce protection against anti-union discrimination and to review the case of the three trade union leaders dismissed from SAMHAN Fabrics Co. Ltd., within the framework of the above-mentioned procedures and, in the event that these dismissals are found to be related to the exercise of legitimate trade union activities to obtain the reinstatement in their jobs of the trade union leaders in question.
8. 130. Moreover, the Committee notes with concern the declaration of the Government according to which it indicates that it would like the trade unions to obtain prior consent of company management before engaging in trade union activities during working hours. In this regard , the Committee recalls that, while account should be taken of the characteristics of the industrial relations system of the country, and while the granting of such facilities should not impair the efficient operation of the undertaking concerned, Paragraph 10, subparagraph 1, of the Workers' Representatives Recommendation, 1971 (No. 143), provides that workers' representatives in the undertaking should be afforded the necessary time off from work, without loss of pay or social and fringe benefits, for carrying out their representation functions. Subparagraph 2 of Paragraph 10 also specifies that, while workers' representatives may be required to obtain permission from the management before taking time off, such permission should not be unreasonably withheld. (See Digest, op. cit., para. 952.)
9. 131. With regard to the physical assaults and ill-treatment suffered by the workers, the Committee notes the statements of the Government according to which specific measures have been adopted to rectify the abuses committed in the past, including increasing labour inspectorate staff and their resources and increasing the frequency of inspections carried out in clothing factories, the promulgation of a series of ministerial orders aimed at improving implementation of the Labour Code, and the introduction of more severe penalties against employers who violate workers' fundamental rights. In this regard, the Committee fervently hopes that all these measures will be reflected in practice by greater respect for fundamental human rights with a view to guaranteeing the necessary conditions in which workers are able to exercise freely their basic rights and particularly their trade union rights.

The Committee's recommendations

1. 132. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the registration of the Workers' Free Trade Union of the Kingdom of Cambodia (SLORC), the Committee urges the Government to indicate without delay whether this trade union organization, which was formed almost two years ago when it deposited its rules with the competent authority, has been registered.
   • (b) With regard to the violations of the right to collective bargaining, the Committee requests the Government to inform it whether negotiations have taken place between SLORC and the employers in the clothing industry.
   • (c) In respect of the right to strike, the Committee requests the Government to ensure that the right to strike is fully respected.
   • (d) With regard to the dismissals of workers, the Committee requests the Government to: (i) adopt measures to reinforce protection against anti-union discrimination and to review the situation of the trade union leaders and workers at the Tack Fat Garment factory and the factory of SAMHAN Fabrics Co. Ltd. within the framework of impartial procedures and, in the event that these dismissals are found to be related to the exercise of legitimate trade union activities, to obtain the reinstatement in their jobs of the workers in question; and (ii) to provide more specific information on the manner in which the cases of the two workers dismissed from the Golden Time and Winner Garment factories were dealt with. The Committee requests the Government to keep it informed in this regard.