Rapport intérimaire - Rapport No. 308, Novembre 1997

Cas no 1934 (Cambodge) - Date de la plainte: 08-JUIL.-97 - Clos

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

1. 85. In its communication of 8 July 1997, the World Confederation of Labour (WCL) submitted a complaint of violation of trade union rights against the Government of Cambodia. Additional information was sent in a communication dated 17 September 1997.
2. 86. The Government sent its observations in a communication dated 19 August 1997, but it has not yet submitted its comments on the additional information.
3. 87. Cambodia has neither ratified 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. The complainant's allegations

1. 88. In its communication of 8 July 1997, the WCL denounces violations of the right to organize and the right to strike, as well as of other trade union rights and civil freedoms.
   • Overall situation
2. 89. The WCL points out that the democratic elections in Cambodia and the pacification of the country have encouraged foreign investors to set up enterprises, especially in the clothing and textiles industry - in which almost all the staff is made up of young girls from poor peasant families. The complainant describes the working conditions in the clothing industry: 14 hours of work per day, seven days per week; compulsory overtime; wages of US$30 (less than the subsistence level); deductions on wages by the employer to cover expenses incurred by medical examinations, training and the equipment provided to staff, etc.; deductions on wages for medical treatment required as a result of an occupational accident; lack of protection in the event of sickness or maternity; lack of protection against dismissals; shortcomings in the area of safety and health.
3. 90. Workers have been insulted and received blows; some have even been locked up in the factories. They have been beaten up during demonstrations and around the factories. A number of workers received blows merely because they moved around during working hours - and several accounts bear witness to this. This violence was perpetuated by the police or factory guards. The Secretary of State for Social Affairs wrote to employers to remind them of their obligations. It is common practice for women workers to be subject to a body search. Restrictive access to toilets is a further example of degrading humiliations inflicted on workers, who must use rationed coupons limiting their use of toilets to once a day. According to the complainant, both the labour inspectorate and the judicial system are extremely inadequate. In its additional communication of 17 September 1997, the complainant states that there have been no improvements in working conditions.
   • Establishment of the trade union SLORC
4. 91. It was against this background that the first trade union organization - the Workers' Free Trade Union of the Kingdom of Cambodia (SLORC) - was set up on 10 December 1996 by a group of 158 workers in one of the largest factories in the country. The trade union soon had nearly 5,000 members.
5. 92. With a view to improving working conditions, the trade union carried out peaceful action, started negotiations and concluded agreements on wages and working conditions with four enterprises. However, many enterprises refused to allow the trade union to exist; employers resorted to brutal action to undermine the determination of the workers and impede their lawful trade union activities. Furthermore, the State took repressive measures against the trade union.
   • Strikes
   • Cambodia Garment Ltd.
6. 93. According to the complainant, the SLORC organized the first strike in Cambodia's modern history on 17 December 1996 in the factory of Cambodia Garment Ltd., to protest against working conditions, attempts to disband the recently established trade union and bad treatment inflicted on workers by their bosses. It also called for the respect of human rights, a minimum wage of $50, a 40-hour working week and paid maternity leave. Nearly 4,000 workers in the Cambodia Garment Ltd. went on strike. During the strike, the guards in the enterprise fired into the air to intimidate and disperse the workers.
7. 94. The three main officials of the new trade union, Ms. Mary Ou, the President, and Ms. Om Navy and Ms. Phuong Sophon, were forcefully detained by the factory's management and threatened with dismissal. They were questioned for a whole morning by the directors on their role in setting up the trade union and were subsequently released.
   • Gennon Manufacturing
8. 95. The workers of the Gennon Manufacturing enterprise went on strike to put forward their claims. A representative of the management refused to negotiate with the strikers, stating that the trade union was an illegal organization. A factory employee was dismissed after having lodged a complaint with the municipal court of Phnon Penh on 2 January 1997, on the grounds that the directors of the factory had forced her to have a body search in front of other employees.
   • Tack Fat Garment
9. 96. The workers in the Tack Fat Garment enterprise took action to protest against: delays in the payment of their wages; the systematic dismissal of workers if they lodged a complaint; arbitrary cuts in wages; the detention of workers to force them to do overtime and threats to suspend them or cut their wages if they refused; dismissal in the case of a second refusal.
10. 97. The workers in the factory went on strike on 3 January 1997 to obtain an improvement in their working conditions. The management tried to break up the strike by detaining 200 strikers. On 4 January, the trade union organized a peaceful demonstration to back its claims. The enterprise threatened to refuse to pay the wages for December if the workers did not end their strike. The demonstration, mostly made up of women, was violently crushed by the police, led by the chief of the Phnom Penh police. The Ministry of the Interior had ordered the police to go on the spot, where they used water cannons and beat up the workers - some of whom, including women, were injured and others arrested by the police. One woman was admitted to hospital after receiving head injuries when she was thrown to the ground by the pressure of the water cannon. Another woman worker was injured as a result of blows she received from the butt of a rifle wielded by a policeman. Yem Sarin, a worker of 29 years of age, was punched by the police and had a swollen mouth. Men Peuv, 27 years of age, pushed against a wall by a policeman, had deep scratches on her face.
11. 98. On 6 January, 500 workers gathered in front of the factory and demanded payment of their December wages. Police and anti-riot brigades intervened. The trade union officials urged the workers to enter the factory premises to avoid violence. Police entered into the factory and, using loudspeakers, ordered the workers to resume work. However, the workers were not intimidated. Pov Kero, 19 years of age, who was handing out leaflets listing the workers' claims (including: an end to arrears in wages, systematic dismissals of workers if they complained, arbitrary cuts in wages, overtime forced on workers), was forcefully taken away and beaten up so badly that he lost consciousness. He was detained all night. The owner of the factory, Mr. Lee, refused the workers' requests on economic grounds, arguing that if he complied this would raise production cost, and undermine investment and export prospects.
12. 99. On 10 January, the press reported that the factory workers who had decided to continue work were under the surveillance of 100 or so members of the military police - many of whom were armed.
13. 100. The strike came to an end on 17 January. The employers accepted to start discussions on the workers' claims. On 18 January, when work was resumed, 13 workers were arbitrarily dismissed on the grounds that they had started working one day late. In fact, it seems that they were dismissed for having participated in the strike. They were subsequently informed that they would be reinstated if they undertook in writing to stop stirring up the workers. Thip Chantavy and Mao Chansithoeun, whose accounts appeared in the press on 20 January, were among the workers dismissed.
    • Violations of other trade union rights
14. 101. According to the complainant, these actions clearly demonstrate that the Cambodian Government has violated the rights guaranteed under Conventions Nos. 87 and 98 and that the employers and the Government systematically restrict and undermine the right of workers to organize freely. The officers and activists of SLORC had tried to organize an independent trade union capable of negotiating with the employers. The refusal of the management of Gennon Manufacturing to negotiate, on the grounds that the trade union was an illegal organization, reflects the position of most of the employers. This attitude contravenes Article 2 of Convention No. 87 which guarantees the right to workers, without distinction whatsoever, to establish and join organizations of their own choosing without previous authorization. The trade union was also set up in accordance with article 36 of the Constitution of the Kingdom of Cambodia, which stipulates that Khmer citizens of either sex shall have the right to form and to be members of trade unions
15. 102. The right to strike recognized as a lawful means for workers to defend their interests and guaranteed under Convention No. 87, has been violated by the Government. The Government and the employers called in security forces on a large scale to put down the strikes in the factories and during the strikers' demonstrations. In view of the horrendous working conditions in Cambodia, particularly in the clothing industry, the WCL feels that the right to strike is an essential means whereby workers' organizations can promote their economic and social interests.

B. The Government's reply

• Overall situation
  103. 103 In its communication dated 19 August 1997, the Government explains that, generally speaking, there has been a constant and considerable increase in the number of private enterprises, especially in the clothing industry. At the end of 1996, there were 43 clothing factories in Phnom Penh and in the neighbourhood of the city, which employed approximately 20,000 employees - of whom the overwhelming majority were women. At the beginning of 1996, the employers in 36 clothing factories had founded the Cambodian Clothing Manufacturers' Association.
  104. 104 In March 1997, a new Labour Code was officially promulgated which, according to the Government, was an improved version of the Labour Codes of 1972 and 1992. The Ministry of Social Affairs, Labour and War Veterans (hereinafter referred to as the Ministry of Labour) has the urgent task of implementing the Labour Code. This legislation is as new for public officials as it is for employers and workers. The Government stipulates that the new Labour Code (in the same way as that of 1992) establishes working time at eight hours a day, six days a week. If overtime exceeds one hour a day, the employers must obtain previous authorization from the labour inspectorate. Workers may not be forced to do overtime against their will.
  105. 105 The Government points out that, according to the agreements reached between the Ministry of Labour and the Cambodian Manufacturers' Association of 25 December 1996 and 17 January 1997, the minimum wage has been set at US$30 for an apprentice and US$40 for a worker. According to the interministerial communiqué of 26 December 1996, the representative of the Ministry of Labour, the representative of the Ministry of Industry and the employers' association grouping 36 clothing factories continued their discussions. The employers agreed to grant the workers fringe benefits, overtime pay for night work and various expenses (punctuality bonuses, transport, uniforms, etc.). They nevertheless requested to be given some time to discuss specifically these issues with workers or their representatives. As regards working time, the employers decided to apply the 48-hour week as stipulated in the Labour Code. The Ministers concerned, for their part, decided to make gradual improvements to working conditions and the election of staff delegates. The Government points out that any expenses incurred by a medical examination are borne by the employer. The employer may deduct a part of the workers' wages in order to offset the loan taken out by these workers to buy the materials and equipment for which they are responsible. Any medical treatment for workers who have incurred an occupational accident is the responsibility of the employer. Any insults or acts of violence are completely forbidden and are considered a very serious offence on the part of the employer. There is no legal provision forbidding workers from going to the toilets. Workers are entitled to a rest period in the event of sickness or maternity. There is a maternity leave of 90 days and the beneficiary is paid at least half of her salary. Dismissed workers must be given advanced notice and be paid compensation, unless they have committed a serious offence. They are entitled to damages if they are dismissed without any valid grounds being given. The employer is responsible for the health and security of workers at the workplace.
  106. 106 Furthermore, the Government points out that according to the reports drafted by various groups of the labour inspectorate and other information, the Ministry of Labour came to the conclusion that there had been a general violation of working conditions. Nonetheless, the Ministry made the following comments: workers are only forced to do overtime occasionally, for very short periods, when there is a large order for clothing; in these cases, the workers were paid the corresponding wages and received an additional meal. Before 1 January 1997, some clothing factories paid a wage of less than US$30 a month; however, at that time, the Ministry had not yet established the minimum wage. Occupational accidents in clothing factories are rare and usually not very serious. Workers are only searched on their way in or out of the factory to protect the factory's property and guarantee security. A body search was only carried out in one factory in which two foreign employees searched two women workers in an indecent way. The latter lodged a complaint with the Ministry which made the employers at fault pay US$1,000 damages to each of the workers concerned. However, this was an isolated case. The large majority of workers are young, single girls and there are no grounds to believe that pregnant women are not entitled to maternity leave. In some cases, employers watch out for workers who go to the toilets to avoid work. In some factories which do not have an infirmary, employers authorize sick workers to seek medical attention outside the factory. Only very few factories still do not have occupational physicians and labour inspectors have taken steps to ensure that employers assume their responsibilities in this respect. The majority of workers dismissed did not receive compensation. Amongst the complaints lodged on this matter to the Ministry, there was only one case involving illness and the other three were related to trade union activities. Occupational safety is not a problem as the labour inspector carries out inspections in the area of occupational safety and health.
  107. 107 A number of workers were insulted by the managers in the factory, especially by the foremen. Section 79 of the Labour Code of 1992 and section 23 of the new Code, clearly stipulate that any insults, violent behaviour or physical assaults are considered a serious fault on the part of the employer. However, such cases have been rare in the past. Any time the Ministry has been informed of a complaint in this respect, it has sent an inspection group to settle the dispute immediately, ordering the employer to cease such action immediately and warning him that the matter will be brought before the courts if he commits a subsequent offence. To date, there has not been a second offence. Other offences give rise to warnings for the following reasons: government policy is trying to attract foreign investment to solve the problem of unemployment and develop the national economy. The clothing industry is developing rapidly and absorbing much of the labour force, particularly women. In Cambodia, labour legislation and regulations are a recent phenomenon and, as yet, there is an inadequate knowledge of the law, and a lack of experience and practice. The Labour Code has therefore been implemented in stages: before actually bringing a matter before the court or applying a penalty, the labour inspectorate has tried to increase awareness of the Code, monitor its application and give warnings. There are not yet enough labour officials or means to keep up with the rapid development of the economy and changes in the world of work. The contentious issue of allowing workers a certain period of time to go to the toilet is difficult: it requires not only the understanding of the employer but also the good faith of the workers. However, occupational physicians have advised employers to allow workers to use the toilets whenever they need to do so. Sick workers have been neglected for two reasons: not all factories have an occupational physician as yet and have sent their workers to be examined to make sure that they are physically fit - as they should have done. The Ministry is taking measures to penalize factories which have not complied with this requirement.
• Creation of the trade union SLORC
  108. 108 The Constitution of the Kingdom of Cambodia, adopted in 1993, stipulates the right of all citizens to establish and be members of trade unions and specifies that "the organization and conduct of trade unions shall be determined by law". The Free Trade Union of Workers of the Kingdom of Cambodia (SLORC) was established on 15 December 1996, before the new Labour Code, which contains provisions on freedom of association, had been adopted and officially promulgated. Although the Kingdom of Cambodia has not yet ratified Conventions Nos. 87 and 98, the new Labour Code contains specific provisions relating to trade union rights and freedoms in accordance with the standards of both of these Conventions. SLORC was set up by a politician from a party which is in opposition to the Royal Government and his political objectives outweigh any that might be to defend the real interests of workers. His name is Mr. Sam Rainsy, President of the Party of the Khmer Nation, a former member of the Royal Government who, according to the Government, was asked to resign by the National Assembly. The name of the trade union (which first of all seems to have been called "Trade Union of Free Workers of the Khmer Nation") and its activities are closely linked to the Party of the Khmer Nation. The president of this party was the direct head of this trade union, which is contrary to Article 10 of Convention No. 87. In an appeal dated 27 December 1996, of which the Government provides a copy, the Government referred to the demonstrations by workers in clothing factories who were asking their employers to respect working conditions such as working hours, wage increases, benefits and other requests. It also mentioned the inter-ministerial communiqué of 26 December and the wage agreement of 25 December. The Government states that "profiting from workers' action in support of their claims, a handful of extremists exploited the situation for their own political ends by inciting workers to organize demonstrations and marches without respecting the law still in force and using the name of Trade Union of Free Workers of the Khmer Nation' which had not yet fulfilled the necessary administrative requirements to influence national and international public opinion".
• StrikesCambodia Garment Ltd.
  109. 109 In this factory, the workers had elected the delegates on 22 April 1995. It was not appropriate to organize a strike at this time because the legislation on trade unions had not yet been promulgated. At the time of the strike, discussions were being held at the National Assembly on the draft Labour Code. Informed of the strike, the Deputy Director of the Labour Inspectorate Department (Ministry of Labour) Mr. Kéo Borentr, decided to go to the factory on the morning of 18 December with the head of an inspection group to try and settle the dispute. Mr. Bun Va, representative of the factory director, confirmed that the strike of 15 and 16 December had been led by Mr. Sam Rainsy and Mr. Khiev Rada, President and Secretary-General of the Party of the Khmer Nation, respectively. He admitted that the factory guards had fired into the air on 17 December but that this had been to deter unknown persons, led by the two above-mentioned persons, from storming the premises after negotiations had broken down. The inspection group interviewed Mrs. Mary Ou, Mrs. Um Navy and Mrs. Phuong Sophon, President, Vice-President and Secretary-General of the SLORC, respectively, who stated that they had been detained by the employer but had not, according to the Government, been ill-treated or threatened with dismissal. The inspection group asked the three trade union officials to put an end to their trade union action, particularly the strike, whilst awaiting the adoption of the new Labour Code which would recognize trade union rights and freedoms. The Government enclosed with its reply the minutes of the meeting of 18 December "on the matter of setting up a trade union and its aims" between the representatives of the Ministry of Labour and the three trade union officials mentioned above. According to this document, the Deputy Director of the Labour Inspectorate informed the three women workers that the Code had not yet authorized the setting up of trade unions, but that the employees could put forward claims with respect to their rights and interests through the staff delegates they had already elected. He asked them to stop spreading propaganda and put an end temporarily to their trade union activities whilst awaiting the adoption of the new Labour Code which would regulate trade union rights and activities. The president of the trade union stated, according to this document, that the trade union, set up on 15 December 1996 with the assistance of Mr. Rainsy, intended to promote and defend the rights and freedom of workers and that it had the following objectives, amongst others: wage increases; cuts in weekly working hours; benefits in the event of sickness; dismissals with valid grounds; appropriate benefits in the event of pregnancy. She stated that this trade union had been set up at national level and had no political leanings. The inspection group went back to the factory on 19 December in the morning with a view to settling the dispute. The group saw Mr. Sam Rainsy and Mr. Khiev Rada, as well as many other people not belonging to the factory, enter into the factory premises. Both persons mentioned above insulted and were extremely rude to the factory directors; they also made accusations against the Government, especially against officials from the Ministry of Labour. Their aim was not to solve the problems but to stir up the workers against the employers and the Government, especially the Ministry which, at all times, had successfully tried to play a conciliatory role in disputes within the factory. Only very few workers in the factory, members of the party in question, took part in this strike - together with drivers of taxi-motorbikes and vagrants paid by the party. According to the text of the inter-ministerial communiqué of 26 December, of which a copy was submitted by the Government, the Ministry of Labour discussed with the employer who agreed to satisfy the workers' demands on a number of points, including overtime, sickness benefit, maternity leave and, notice and compensation in the event of dismissal - in accordance with the Labour Code. The employer also undertook to give instructions to the management of the enterprise to use decent language and behave in a correct manner towards the workers.
• Gennon Manufacturing
  110. 110 When he was informed of the strike in this factory, Mr. Kéo Broentr went with the inspection group on the spot and stayed from 25 to 30 December 1996 to try and settle the dispute. The group first interviewed the employer and then, on the afternoon of 25 December, held a meeting with the strikers and informed them of the inter-ministerial communiqué dated 26 December concerning the increase of the minimum wage in the clothing industry to US$40 a month. In view of the fact that this factory had not yet any staff delegates, as it had just been created, the inspection group requested the workers to elect staff delegates as soon as possible so that the latter could lawfully represent the workers' interests in discussions with the employer. Mr. Sam Rainsy, his wife, members of the Party of the Khmer Nation and other persons not belonging to the factory arrived and started insulting the Government, the Ministry and factory management; they encouraged the workers not to accept any settlement of the dispute by the inspection group. Mr. Rainsy insisted that the five so-called representative workers that he had previously appointed, as well as his wife, should be able to enter the factory to negotiate with the employer. The latter accepted to receive these representatives - but not Mr. Rainsy or his wife. Mr. Rainsy then started making threats and incited people to throw stones which caused damage to the premises. The persons involved in this violence refused to listen to the competent authorities and the police who advised them to settle the dispute peacefully.
  111. 111 As regards Mrs. Chun Rany and Mrs. So May, workers in the Gennon Manufacturing factory, who had accused the factory management of making them undress to be searched, this matter was settled by the Ministry on 12 February 1997 by means of a conciliation. The director of the factory accepted to pay each worker US$1,000 damages.
• Tack Fat Garment
  112. 112 As in both other cases, the SLORC did not turn to the law to settle the dispute. On 3 January, at about 2 pm, most of the workers were at work. The inspection group, led by Mr. Kéo Borentr, was discussing with the directors of the factory when militants from the trade union caused panic in the factory by throwing stones onto the buildings, from outside, destroying part of a roof. Mr. Sam Rainsy and his followers urged the workers to down tools and started using the same gross language as in the other two cases. The strikers forced their way into the main entrance of the factory. Amongst them, there were two drivers of motor-trailers, Lam Ham and Vong Saroeun, who used a large hammer to destroy the main door. Mr. Rainsy then proceeded to call an election by show of hands of 11 provisional workers' representatives. About 50 workers, out of the 1,000 in the factory, raised their hand. On 4 January, a meeting was held from 8 a.m. to 6 p.m. between the employer and the 11 temporary representatives under the chairmanship of Mr. Kéo Borentr, to try and settle the dispute. The representative of the Ministry of Industry, Mines and Energy, the representative of the police of Khan de Meanchey and the representative of the Ministry of the Interior took part in this discussion. The workers' representatives confirmed that until then they had never committed any act of violence against the enterprise but that they had been threatened by forces outside the enterprise and encouraged not to work. All the representatives agreed to organize the election of staff delegates on 6 January. Both parties reached an agreement on 12 of the 15 points under discussion. The issues that remained pending concerned payment of overtime, piece rates and the date on which December 1996 salaries should be paid. At the time of the discussions, Mr. Rainsy and the SLORC activists announced that they did not recognize the 11 representatives previously elected - whom they accused of being sold to the management. They started punching two representatives who wanted to inform the strikers of the way the discussions had evolved and of their outcome. They refused to recognize the agreement reached and submitted new demands. They persuaded a small number of workers to march. The crowd blocked the traffic, creating havoc and disturbing public law and order. In order to guarantee the safety of the majority of workers who wanted to continue working to protect the factory property and maintain social order, and in application of the communiqué of the Ministry of the Interior of 19 December 1996 and the appeal of the Royal Government of 27 December, the police took the two drivers of the motor-trailers to the police station and used water cannons to break up the demonstration. During these events, no worker or demonstrator was tortured or mistreated by the police, contrary to the claims of the complainant. Only Mr. Lam Han and Mr. Vong Saroeun were detained and they were released once they had been interviewed. On 6 January, the factory put up a notice calling on the workers to come and fetch their wages and to resume work on 8 January. On 8 January the factory director paid the December 1996 wages due to the workers and, on the following day, organized the election of nine staff delegates and nine substitute delegates. On 11 January, the director once again appealed to the workers to resume work on 13 January at the latest. On 13 January, the director called together the representatives elected to discuss the pending issues. In view of the fact that some workers had not yet started work on the 13th, the director postponed the date upon which work should be resumed to 17 January.
  113. 113 On 21 January, the Ministry received a complaint from 13 workers from the Tack Fat factory accusing the director of having dismissed them without valid grounds. To settle the dispute, the Ministry convened both parties, but the employer refused to reinstate the workers for the following reasons: nine workers (including Mao Chansithoeun) had downed tools and not started work again on 17 January; two workers had stolen factory property and had been dismissed; two workers had been dismissed because they had left their work and not started again at the end of their authorized leave; and Mrs. Thip Chantavy did not work at the Tack Fat factory. The Government provided a copy of the minutes of this meeting, which was held on 31 July 1997.
• Other trade union rights
  114. 114 The Government states that the complainant has only based its case on the complaints from the SLORC and that this latter union has political objectives. It has carried out its activities without respect for the law. It has often resorted to violent action to attain its political goals. It is opposed to the Royal Government and to the inspection group which is trying to settle the dispute peacefully in accordance with legal procedures.
  115. 115 The Cambodian authorities have not violated the rights guaranteed under Conventions Nos. 87 and 98. Although it has not yet ratified these Conventions, Cambodia respects the right of citizens to set up trade unions without previous authorization. Neither the Government nor the employer forbade the workers from setting up a trade union, even though the new Labour Code had not yet been officially promulgated, and the staff delegates were recognized as being the only lawful representatives of the workers. Furthermore, the SLORC is led by a political party, which is contrary to Article 10 of Convention No. 87. Under the Constitution, the organization and conduct of trade unions is determined by law. Consequently, the refusal to negotiate with the trade unions cannot be considered as a fault by the employer because the new Labour Code had not yet been adopted. The strikes and demonstrations organized by the SLORC had not respected the law of the land, which is contrary to Article 8 of Convention No. 87. The meetings and demonstrations organized by the SLORC in the Cambodia Garment Ltd, Gennon Manufacturing and Tack Fat Garment clothing factories were held without previous authorization and involved acts of violence which infringed public law and order, which is contrary to sections 1, 2, 4 and 6 of the Act on demonstrations. The Ministry of the Interior, in a press communiqué dated 19 December of which a copy has been communicated by the Government, states that the trade union set up by Mr. Sam Rainsy had not yet officially submitted its file to any competent institution; it had therefore not been legally acknowledged and, consequently, the demonstration of workers organized by the trade union calling for the respect of the right to work, establishment of working hours and wage increases, was not lawful. Acts of violence were committed during the strikes, urged on by the trade union, which is contrary to section 1 of the Act on demonstrations. The trade union also infringed the right to private property, which is contrary to article 44 of the Constitution. The exercise of rights and freedom by any individual should not adversely affect the rights and freedoms of others. The exercise of such rights must be in accordance with the law (article 31 of the Constitution). The right to strike and to non-violent demonstration must be exercised in the framework of the law (article 37) and legal private ownership is protected by law (article 44).
  116. 116 The SLORC was set up before the new Labour Code had been issued. Before carrying out any activities, it therefore had to receive previous authorization from the director of the factory and the competent authorities. According to the disputes settlement procedure, the workers, employers and representatives of the Ministry of Labour are parties recognized as those authorized to settle a dispute. The security forces only intervene if the dispute causes a public disturbance and is accompanied by acts of violence. The presence and activities of the police and security forces in these three factories were therefore justified. To maintain public law and order, the police may arrest any demonstrator resorting to violence and take appropriate measures to break up demonstrations by using, for example, water cannons in accordance with provisions in the legislation on demonstrations. No worker was injured or mistreated. Mr. Lam Han and Mr. Vong Saroeun were only detained for a very short time. The competent authorities showed considerable restraint because they did not sentence the guilty or the persons who had encouraged workers to take violent action.
  117. 117 The Government expresses the hope that, thanks to the technical assistance of the International Labour Office, it will be able to make up for its shortcomings and embark on a gradual process of development which will be in the interest of workers.

C. The Committee's conclusions

1. 118. The Committee notes that the allegations concern the violation of the right to establish freely trade unions and the right to strike and collective bargaining, dismissals of trade union members and pressure and threats against these trade unionists.
2. 119. The Committee notes that the Government, although it has not yet ratified Conventions Nos. 87 and 98, states that it respects the principles contained therein and refers, in a detailed way, to a number of provisions in these Conventions in its reply.
3. 120. The alleged events occurred against a background of particularly difficult working conditions as the country was engaged in an economic drive, and attempts were being made to attract investors in some new development sectors. The Government has acknowledged that there were abuses in working conditions and states that measures were taken to put these right.
4. 121. The Government points out that labour legislation is a recent phenomenon in Cambodia, that knowledge of the laws, experience and practice in this area are as yet inadequate and that the number of labour officials and the means available to them have not been able to keep pace with the rapid developments in the economy and the world of work. The Committee notes with interest that the Government has expressed the intention of remedying the shortcomings with the technical assistance of the International Labour Office.
5. 122. The Workers' Free Trade Union of the Kingdom of Cambodia (SLORC) was set up in December 1996. According to the complainant, a number of employers refused the trade union the right to exist, whereas others refused to recognize it on the grounds that it was an illegal organization. Furthermore, as soon as the trade union was set up, repressive measures were taken against the trade union officials and members. According to the Government, SLORC is led by the president of an opposition political party and the name, activities and objectives of this trade union are closely bound up with this party; the trade union's activities, which are sometimes violent, are not intended to defend the workers' interest but to pursue political objectives. As SLORC was set up before the new Labour Code was issued, it had first to receive previous authorization from the factory director and the competent authorities before it could carry out its activities. The Government states that since the Labour Code has been issued, the trade union has failed to apply the provisions concerning the registration of trade union rules.
6. 123. On the basis of the documentation at its disposal, the Committee notes that the trade union in question was set up in December 1996 by more than 100 workers in clothing factories and that it now has a large number of members. The Committee notes that it is the first trade union to be set up in the clothing sector and that those employed in this industry are amongst its officials. According to the documents provided by the Government, the president of the trade union informed the Deputy Director of the Labour Inspectorate that the trade union, set up on 15 December 1996 with the help of Mr. Rainsy, had as its objective to defend the rights and freedoms of workers and to request, amongst other things: an increase in wages; a cut in weekly working hours; benefits in the event of sickness or pregnancy; and some control over dismissals. Furthermore the trade union had been set up at national level and had no political leanings. The Committee points out that the claims thus put forward by the trade union concerned working conditions and wages and that its activities, supported by a large number of workers, are those normally pursued by a trade union organization which operates to defend and promote the interests of its members. The Committee also notes that the trade union started negotiations which, in some enterprises, resulted in agreements on wages and working conditions.
7. 124. From the information contained in the file, the Committee understands that the events which prompted the complaint, particularly the setting up of SLORC, occurred during a transitional period when the new labour legislation was about to be adopted and that it entered into force only three months later. The Committee nevertheless feels bound to recall that the formalities prescribed by national regulations concerning the constitution and functioning of workers' and employers' organizations are compatible with the principles of freedom of association provided that these regulations do not impair the guarantees laid down in Convention No. 87. However, if the failure to register resulted in a trade union being made illegal, this would be tantamount in practice to subjecting the registration of trade unions to previous authorization, and one of the basic principles of association is the right of workers to establish freely organizations of their own choosing, without previous authorization. The Committee also recalls that the development of free and independent organizations and negotiation with all those involved in social dialogue is indispensable to enable a government to confront its social and economic problems and resolve them in the best interests of the workers and the nation. (See Digest of Decisions and Principles of the Committee on Freedom of Association, 4th edition, 1996, para. 24.)
8. 125. In these circumstances, and noting that the new Labour Code does not appear to impose obstacles to the establishment and operation of trade unions, the Committee expresses the firm hope that the Government is now in a position to put the situation aright, thus allowing the employers' and workers' organizations to fulfil their functions. The Committee therefore asks the trade union to deposit its rules with the competent authority and the Government to take the necessary measures to ensure that the organization is registered without delay.
9. 126. According to the complainant, a number of employers refused to negotiate with the trade union on the grounds that it was an illegal organization. In this respect, the Government points out that, in accordance with previous legislation, only staff delegates were acknowledged to be lawful representatives of the workers and that refusal to negotiate cannot therefore be held against the employer. According to a document provided by the Government, the representative for the Ministry of Labour stated to the SLORC officials, at a meeting on 18 December 1996, that the legislation did not yet allow the setting up of trade unions but that the employees could make their claims and put forward their interests through the staff delegates who had already been elected. He requested the officials of the trade union to give up their trade union activities temporarily until the new Labour Code had been adopted. The Committee notes that the Government, in an "appeal" of 27 December 1996, states that the staff delegates, who should be urgently elected in agreement with the employers, are "the only representatives of the workers and employees in direct discussions with the employers and competent ministries under the Labour Code".
10. 127. In this context, the Committee feels bound to stress that freedom of association implies not only the right of workers and employers to form freely organizations of their own choosing, but also the right for the organizations themselves to pursue lawful activities for the defence of the occupational interests of their members. (See Digest, op. cit., para. 447.) In this respect, by giving precedence to the delegates over the representatives of the newly established trade union, the Government failed to recognize the right of trade unions to promote and defend the rights and interests of workers; the Committee concludes that this prevented the trade union from organizing its activities and operating and even undermined its very existence. Furthermore, the principles contained in the Workers' Representatives Convention, 1971 (No. 135), and the Collective Bargaining Convention, 1981 (No. 154), guarantee that, where there exist in the same enterprise both trade union representatives and elected representatives, appropriate measures should be taken to ensure that the existence of elected representatives in an enterprise is not used to undermine the position of the trade unions concerned and to encourage cooperation between the elected representatives and the trade unions and their representatives (see Digest, op. cit., para. 787). By giving precedence to the delegates over the representatives of the newly established trade union, the Government failed to take all the necessary measures to prevent the existence of delegates undermining the position of the newly established trade union or to encourage cooperation between both sets of representatives. Furthermore, the Committee feels that by stating that the delegates were the only representatives of the workers and employees in direct discussions with the employers and competent ministries under the Labour Code, the Government failed to apply the principle of the right to bargain collectively, whereby measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers' organizations and workers' organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements. (See Digest, op. cit., para. 781.)
11. 128. In these circumstances, the Committee requests the Government to take the necessary measures so that the trade unions can promote and defend the interests of workers, especially by means of collective bargaining on working conditions, in line with the principle recalled above. The Committee requests the Government to take the necessary measures to ensure that the SLORC can negotiate working conditions in the clothing sector with the employers in this sector.
12. 129. As concerns the right to strike, the Committee notes that strikes took place in three enterprises and that they were backed or extended by demonstrations in public places. The complainant alleges that the Government and employers called upon the security forces to intervene on a large scale to put down the strikes in the factories and during peaceful demonstrations, and that persons were injured as a result of the ensuing violence. As for the Government, it states that the organization of strikes and demonstrations by the SLORC had been outside the law. Acts of violence had been committed during the strikes and demonstrations at the instigation of the trade union, which had violated the Act on demonstrations. The Committee notes that this law stipulates, amongst other things, that the authorities must be informed in writing three days in advance by the organizers of demonstrations. The Committee notes that according to the Government, no worker was injured or mistreated and that two persons, who had been arrested, Mr. Lam Han and Mr. Vong Saroeun, were only detained for a very short time and subsequently released.
13. 130. The Committee is unable to determine on the basis of the file submitted by the complainant, whether the measures taken by the Government were intended to break the strike, even if their aim was to put an end to the demonstrations in a public place and to disperse the demonstrators; the Committee does not have adequate information to determine the origin and seriousness of the violence which occurred during the demonstrations.
14. 131. The Committee nevertheless recalls that the right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests (See Digest, op. cit., para 475) and that the right to organize public meetings constitutes an important aspect of trade union rights. However, the Committee has always drawn a distinction between demonstrations in pursuit of purely trade union objectives, which it has considered as falling within the exercise of trade union rights, and those designed to achieve other ends. (See Digest, op. cit., para. 133.) Furthermore, the Committee stresses 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 (See Digest, op. cit., para. 77.)
15. 132. Concerning the dismissal of 13 workers, on 18 January, when work was resumed in the Tack Fat Garment factory after it had been on strike, the Committee notes that, according to the complainant, the grounds for these dismissals were false and that the persons concerned were actually dismissed for having taken part in industrial action. The Committee notes that the Ministry of Labour sent an inspection group to the enterprise in July 1997 to gather information on the 13 dismissals. The Committee recalls that respect for the principles of freedom of association requires that workers should not be dismissed or refused re-employment on account of their having participated in a strike or other industrial action. (See Digest, op. cit., para. 593.) The Committee is of the opinion that if it were proven that there were some basis in the allegations that workers were dismissed for taking part in a strike, this could constitute a serious violation of the principles of freedom of association. The Committee notes the information given by the Government regarding the reasons for these dismissals and that this provides evidence of their anti-union nature. In these circumstances, the Committee requests the Government to undertake an in-depth inquiry into these dismissals 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 of the measures taken in this respect.
16. 133. The Committee notes that the Goverment has confirmed the temporary detention of Ms. Mary Ou, Ms. Om Navy and Ms. Phuong Sophon. In this respect, 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. (See Digest, op. cit., para. 70.)
17. 134. Furthermore, the Committee notes that the Government referred in its reply to the complaints submitted to the Ministry of Labour concerning the compensation for dismissals in three cases "concerning trade union activities". The Committee recalls 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., para. 707.) The Committee requests the Government to submit full information on the three cases of anti-union discrimination to which it referred in its response and specify the circumstances of these dismissals and the outcome of the complaints in question; it also requests the Government to communicate the decision of the Ministry.
18. 135. The Committee notes that, according to the complainant, the workers were the victims of brutal behaviour, had their integrity undermined, suffered bad treatment and were assaulted and humiliated in their factories. The Labour Inspectorate intervened with the employers and ordered that damages be awarded to the women workers who had lodged a complaint that they had had to undergo a body search. As regards the insults, blows and humiliations meted out, the Committee points out that the complainant refers to the fact that the Secretary of State called the employers to order and that the Prime Minister made statements calling for the respect of national honour. The Committee feels it relevant to emphasize once again the importance to be attached to the basic principles set out in the Universal Declaration of Human Rights, considering that their infringement can adversely affect the free exercise of trade union rights. (See Digest, op. cit., para. 32.) On many occasions, the Committee has emphasized the importance of the principle affirmed in 1970 by the International Labour Conference in its resolution concerning trade union rights and their relation to civil liberties. In particular, the Committee has considered that all appropriate measures should be taken to guarantee that trade union rights can be exercised in normal conditions with respect for basic human rights and in a climate free of violence, pressure, fear and threats of any kind. (See Digest, op. cit. para. 36.) Facts imputable to individuals incur the responsibility of States because of their obligation to remain vigilant and take action to prevent violations of human rights. (See Digest, op. cit., para. 19.)
19. 136. 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.
20. 137. The Committee requests the Government to send its comments on the additional information received on 17 September 1997 from the complainant.

The Committee's recommendations

1. 138. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve 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 reinstatment 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.
   • (h) The Committee requests the Government to submit its observations on the additional information sent by the complainant in a communication dated 17 September 1997.