Report in which the committee requests to be kept informed of development - REPORT_NO348, November 2007

215. The Committee has already examined the substance of this case on three occasions, most recently at its June 2006 meeting, where it presented an interim report to the Governing Body [see 342nd Report, paras 223–234, approved by the Governing Body at its 296th Session].

1. 216. The Government submitted partial observations respecting this case in a communication dated 17 October 2006.
2. 217. As a consequence of the lack of a full reply on the part of the Government, at its June 2007 meeting [see 346th Report, para. 10], the Committee launched an urgent appeal and drew the attention of the Government to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it may present a report on the substance of this case even if the observations or information from the Government have not been received in due time.
3. 218. Cambodia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). It has not ratified the Workers’ Representatives Convention, 1971 (No. 135).

A. Previous examination of the case

1. 219. In its previous examination of the case, the Committee made the following recommendations [see 342nd Report, para. 234]:
2. (a) The Committee firmly urges the Government to make all efforts to ensure that Ms Chey Khunthynith is reinstated in her post or in a similar position without loss of pay or benefits, and enjoys full legal protection against acts of anti-union discrimination. If the competent court finds that her reinstatement is not possible, the Committee once again requests the Government to ensure that she receives adequate compensation so as to constitute sufficiently dissuasive sanctions in respect of such acts of anti-union discrimination. The Committee requests the Government to keep it informed of the decision issued by the competent court in respect of the complaint filed by the Department of Labour Inspection, and to provide it with a copy of that decision as soon as it is handed down.
3. (b) The Committee strongly urges the Government to provide its observations on its previous recommendations, as follows:
4. (i) the Committee requests the Government, in cooperation with the FTUWKC and the employer, to take appropriate steps to ascertain the identity of the complainant (Secretary-General of the FTUWKC) dismissed at the INSM Garment Factory and, once this is done, to ensure that this person is reinstated, and enjoys full legal protection against acts of anti-union discrimination or, if such reinstatement is not possible, that this person is paid adequate compensation so as to constitute sufficiently dissuasive sanctions, in conformity with the above principles;
5. (ii) the Committee requests the Government to provide its observations regarding the dismissals of the President and 30 other union members of the FTUWKC at the INSM Garment Factory, after having obtained the relevant information from the employer. The Committee urges the Government to ensure, in cooperation with the employer concerned, that these workers are reinstated and enjoy full legal protection against acts of anti-union discrimination or, if reinstatement is not possible, that they are paid adequate compensation so as to constitute sufficiently dissuasive sanctions in conformity with the principles of freedom of association and collective bargaining;
6. (iii) the Committee requests the Government to provide it with the court decision concerning the dismissal of Ms Muth Sour at the Top Clothes Garment Factory. If the dismissal resulted from her trade union activities, the Committee requests the Government to ensure that she is reinstated and enjoys full legal protection against acts of anti-union discrimination or, if reinstatement is not possible, that she is paid adequate compensation so as to constitute sufficiently dissuasive sanctions, in conformity with the above principles;
7. (iv) the Committee requests the Government to take appropriate measures so that the three union officials of the CCWADU dismissed at the Splendid Chance Garment Factory are reinstated and enjoy full legal protection against acts of anti-union discrimination or, if reinstatement is not possible, that they are paid adequate compensation so as to constitute sufficiently dissuasive sanctions, in conformity with the above principles.
8. (c) The Committee reminds the Government that it can avail itself of the technical assistance of the Office in order to assist with the drafting and enforcement of the appropriate legislation.
9. B. The Government’s partial reply
10. 220. In a communication of 17 October 2006, the Government stated that it had reached an agreement with the Cung Sing Garment Factory providing for Ms Chey Khunthynith’s reinstatement. An invitation letter was sent to Ms Khunthynith on 5 June 2004, but thus far she has not returned to work.
11. 221. In respect of the President and 30 union members of the FTUWKC dismissed from the INSM Garment Factory, the Government indicated that the Department of Labour Disputes had investigated the matter on 9 August 2006, with the union’s cooperation. The investigation found that the concerned parties had been dismissed due to a lack of available work at the factory, rather than for reasons owing to their membership in or activities on behalf of the union. The Government added that these parties were provided with compensation, in accordance with the labour law, and that all had subsequently obtained new employment; the FTUWKC, furthermore, had confirmed the dismissed parties’ receipt of compensation. Several supporting documents, in Khmer, are attached to the Government’s report.

C. The Committee’s conclusions

1. 222. The Committee deplores that, despite the time that has elapsed since this case was first examined, the Government has not fully replied to the Committee’s recommendations, although it has been invited on several occasions, including by means of an urgent appeal, to present its comments and observations on the case. The Committee strongly urges the Government to fulfil its obligations to comply with the Committee’s procedure and its recommendations and to be fully cooperative in the future.
2. 223. Under these circumstances, and in accordance with the applicable rules of procedure [see 127th Report, para. 17, approved by the Governing Body], the Committee finds itself obliged to present a report on the substance of the case without the benefit of the information which it had expected to receive from the Government in respect of all the pending matters.
3. 224. The Committee recalls that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments on their side will recognize the importance of formulating, for objective examination, detailed replies concerning allegations made against them.
4. 225. The Committee recalls that this complaint initially concerned various allegations of anti-union discrimination, harassment and dismissals at three private companies in the garment and textile industry in Cambodia (INSM Garment Factory, Top Clothes Garment Factory and Splendid Chance Garment Factory). A further complaint of a similar nature was filed concerning the dismissal of Ms Chey Khunthynith, President of the FTUWKC local branch at the Cung Sing Garment Factory in Phnom Penh.
5. 226. The Committee notes the Government’s indication that, although an agreement providing for Ms Chey Khunthynith’s reinstatement had been reached with the Cung Sing Garment Factory, Ms Khunthynith has yet to accept the reinstatement offer.
6. 227. The Committee further notes that the Government’s investigation into the situation at the INSM Garment Factory concluded that anti-union discrimination had not been a factor in the dismissal of the concerned parties – all of whom had received compensation for their termination from work in accordance with the law. While noting this information, the Committee observes that the Government does not specify whether it had ascertained the identity of the complainant (Secretary-General of the FTUWKC) dismissed from the INSM Garment Factory, and requested the Government to confirm that all the dismissed workers and union leaders who were the subject of the initial complaint have received adequate compensation. Noting that, according to the Government, this offer of reinstatement was made over three years ago, the Committee requests the Government to inquire into the employment situation of Ms Khunthynith and, if it appears that she still wishes to return to work at the Cung Sing Garment Factory, to take all possible steps to facilitate her reinstatement or, if this is not possible because of the length of time that has elapsed since her dismissal, to ensure that she receives adequate compensation so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination.
7. 228. The Committee deplores once again that, despite several reminders, the Government did not provide any reply concerning the other aspects of the case and its previous recommendations in respect of the situation at the Top Clothes Garment Factory and the Splendid Chance Garment Factory. The Committee therefore once again requests the Government to:
8. (a) provide it with the court decision concerning the dismissal of Ms Muth Sour at the Top Clothes Garment Factory. If the dismissal resulted from her trade union activities, the Committee requests the Government to ensure that she is reinstated and enjoys full legal protection against acts of anti-union discrimination or, if reinstatement is not possible, that she is paid adequate compensation so as to constitute sufficiently dissuasive sanctions, in conformity with the above principles;
9. (b) take appropriate measures so that the three union officials of the CCWADU dismissed at the Splendid Chance Garment Factory are reinstated and enjoy full legal protection against acts of anti-union discrimination or, if reinstatement is not possible, that they are paid adequate compensation so as to constitute sufficiently dissuasive sanctions, in conformity with the above principles. It again urges the Government to keep it informed of the steps taken in this regard.
10. 229. In previous examinations of this case, the Committee had commented upon the discernible pattern in all the situations complained of in this case, i.e. repeated acts of anti-union discrimination, often culminating in dismissals, and an apparent lack of effectiveness of the sanctions provided for in the law to remedy such acts of anti-union discrimination. The Committee, moreover, had expressed similar concerns with the lack of legislative protection against acts of anti-union discrimination in other cases concerning the Government [Case No. 2468, 344th Report, para. 436]. In this connection, the Committee emphasized that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials, because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 799]. The Committee therefore once again urges the Government to take steps to strengthen the protective measures afforded by the legislation, through, among others, the effective provision for reinstatement of trade union officials dismissed due to anti-union discrimination and the provision of sufficiently dissuasive sanctions, including the provision of adequate compensation when reinstatement is not possible and reminds the Government that it can avail itself of the technical assistance of the Office in this regard.