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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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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.