CMNT_TITLE

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

Other comments on C087

Observation

Direct Request

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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.