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

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

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

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

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

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