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. The Committee observes that the 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 Prakas 249 (regulation on registration of worker organizations and employer associations) of 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. These issues were deemed particularly problematic by unions as the Law on Trade Unions (LTU), under the threat of possible sanction, only allows registered unions to carry out activities. The DCM noted that the Government acknowledged the existence of confusion in relation to the registration process and the need to issue instructions (including to clarify that the registration forms issued were not obligatory) and adequately train the responsible officials. The DCM welcomed the Government’s willingness to address these concerns and encouraged it, in full consultation with the social partners, to amend the registration regulations so as to remove requirements that, while not indispensable for the registration, may discourage or complicate the registration process (such as requests for detailed biographical information of leaders and their families or detailed lists of those participating in elections), to only rely on the minimum and most accessible means to undertake formal verifications in a manner compatible with freedom of association principles, and to clarify to the responsible authorities and workers that the model forms are not compulsory. The Committee takes due note of the Government’s indication that it has held training for officials in charge of implementing the new regulations, as well as unions and employers, and that tripartite consultations have taken place to address concerns and challenges, including so as to issue clarifications on misunderstandings. Conversely, the Committee notes the claim of the International Trade Union Confederation (ITUC) that the new regulations and their implementation have continued to be used to stop trade unions from performing their normal duties, by imposing excessive requirements on the obtaining and maintenance of registration (alluding, for example, to administrative hurdles for minor issues such as grammatical mistakes in the documents – and claiming that a very large percentage of trade unions were not able to meet the requirements to maintain registration). In this respect, the Committee observes that the draft roadmap submitted by the Government to the ILO includes the organization of workshops to review and revise the procedure of union registration. The Committee requests 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 LTU and its regulations on registration in this respect.

Articles 2 and 3. Quorum and decision-making requirements in union’s by-laws. The Committee notes that the Government indicates 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) do 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 indicates that misunderstandings concerning the application of the provision were clarified during the tripartite workshop of 24 March 2017 but that there is room for improvement through further consultations. Taking due note of the explanations provided, the Committee expects that the Government will continue to take any necessary measures 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 Ministry in charge of labour 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. In its reply, the Government states that it is still working on the matter and seeking the technical assistance of the Office. The Committee requests the Government to provide information on any progress in this regard.

The Committee notes that the ITUC in its observations denounces, 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. It also notes that 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 Committee requests 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. The Committee notes that the DCM: (i) observed that the LTU excluded unions not enjoying a most representative status from representing their members in any collective matters and recalled that, while most representative unions could enjoy exclusive bargaining rights, minority unions should be able to represent their members in grievances within the enterprise or in dispute settlement procedures, including before the Arbitration Council (AC); (ii) observed with concern how this provision of the LTU had contributed to an important decline in the number of cases submitted to the AC since the entry into force of the LTU; (iii) observed that the LTU limited the capacities of higher level worker’ organizations to directly represent workers; and (iv) welcomed the Government’s indication that it is in the process of addressing the issues raised concerning the recognition of most representative status to unions, including by enacting the necessary regulations, and that it would reconsider the role afforded to minority unions. The Committee observes that similar concerns are raised by the ITUC in its observations, denouncing that the new regulations have precluded minority unions from representing their members in a dispute. The Committee further notes that the Government states that, through tripartite consultations, it is in the process of drafting Prakas (regulations) on the most representative status of a trade union, and that the draft roadmap includes the drafting of Prakas for tripartite review with a view to providing rights to minority unions to represent their members in collective disputes. While acknowledging that under the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), most representative unions may be recognized as having exclusive collective bargaining rights, the Committee requests the Government to take all necessary measures, in the context of the application of the roadmap and of the drafting of relevant Prakas (regulations), to ensure that organizations that do not have most representative status 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 requests the Government to provide information on any progress in this regard.