Report in which the committee requests to be kept informed of development - REPORT_NO343, November 2006

286. The complaint is set out in communications by the International Confederation of Free Trade Unions (ICFTU) dated 31 August 2005 and 2 March 2006. In a communication dated 7 September 2005, the International Textile, Garment and Leather Workers’ Federation (ITGLWF) associated itself with the complaint.

1. 287. The Government forwarded its observations in communications dated 14 November 2005 and 17 October 2006.
2. 288. 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. The complainants’ allegations

1. 289. In its communication dated 31 August 2005, the International Confederation of Free Trade Unions (ICFTU) states that the employer in the present case, the Fortune Garment and Woollen Knitting Factory (Fortune Garment Co.) possessed a poor record with respect to worker rights. In 2002 the ILO conducted a monitoring exercise involving 65 factories, including the Fortune Garment Co. The monitors examined such issues as wages, working hours, health and safety, and labour relations. The review brought to light a number of violations, and appropriate recommendations were made. The Fortune Garment Co. was among those enterprises with the most violations. Furthermore, the 2004 Eighth ILO project report indicated that, of the 51 recommendations made to the company, only six had been implemented; four recommendations were partly implemented and 41 had not been implemented.
2. 290. According to the complainant, on 30 May 2004 over 1,000 of the 2,700 workers of the Fortune Garment Co. signed with their thumbprints a petition addressed to the management of the company requesting a pay increase. The petition stated that, unless the workers’ demands were met, they would go on strike. The workers were not unionised at the time; they selected as their representative Mr. Sok Vy, a worker who spoke Chinese and would therefore be able to communicate more easily with the Chinese-speaking managing director.
3. 291. On 2 June 2004, the management rejected the demands and a strike commenced. In retaliation, Mr. Sok Vy was suspended and then dismissed. On 5 June 2004 Mr. Sok Vy was summoned by the Kandal Provincial Court under charges filed by the Fortune Garment Co., according to which he allegedly violated criminal law by inciting other workers to “commit criminal acts” and “damage property”. Mr Sok Vy was the only person named in the summons. Later that day, Mr. Sok Vy and four other workers met with management, who told them that, if they agreed to speak to the other workers about stopping the strike, the company would drop the charges. On 6 June 2004 the workers ended their strike action and returned to work.
4. 292. However, the next day the company suspended Mr. Sok Vy, without having obtained prior permission from the provincial labour office, as required by Ministry of Labour regulations. And, on July 8, 2004, in spite of the fact that management had said the charges would be dropped, Mr. Sok Vy received another summons to appear before the court. Upon receiving the summons, Mr. Sok Vy brought it to the manager and asked for an explanation. The manager then produced a letter and said that if Mr. Sok Vy would sign it, the company would drop the charges and he could remain at his job. The letter stated that Mr. Sok Vy had made “unreasonable demands” and that he would not press any more demands on the company in the future. Anxious to keep his job, Mr. Sok Vy signed the letter, which he was told to copy out in his own handwriting.
5. 293. On 8 August 2004, the Coalition of Cambodian Apparel Workers’ Democratic Union (CCAWDU) organized a union at Fortune Garment Co. Mr. Sok Vy was elected president.
6. 294. On 19 December 2004, after the company had introduced some pattern design changes that made it difficult for workers to maintain their level of earnings, the union requested an increase in the piece rate. No agreement was reached and the matter was submitted to the National Arbitration Council. On 20 December 2004 a meeting was held between the CCAWDU branch union and management; the union demanded the reinstatement of Mr. Sok Vy, who had again been suspended on 13 December, for an indefinite period, as well as an end to discrimination against union leaders and activists.
7. 295. On 23 December 2004 another union called a strike at Fortune Garment Co. The stoppage, which was not supported by CCAWDU, only lasted for about ten minutes. Management, however, blamed CCAWDU for the strike: it suspended ten executive committee members and filed charges against them for $50,000.
8. 296. On 27 December 2004, Mr. Sok Vy received a summons ordering him to appear before the court on 31 December 2004 to face charges related to the strike that had occurred in June.
9. 297. On 31 January 2005, the company dismissed 20 CCAWDU activists. Seventeen of them accepted their severance pay; the other three are challenging their termination on the grounds that it constitutes anti-union discrimination.
10. 298. According to the complainant, on 7 February 2005, Mr. Sok Vy stood trial at the Kandal Provincial Court. On that day, in breach of the right of freedom of assembly, police prevented some 200 workers who planned to attend the trial from boarding the trucks that would take them to the courthouse. During the trial, the company failed to present a credible case: no witnesses testified that they had seen Mr. Sok Vy incite other workers or damage company property and, although one manager stated that a windowpane and water hose were damaged during the strike, he had not seen Mr. Sok Vy do any damage. Also, another witness who had earlier submitted a written deposition to the court later retracted his statement and said that nobody had coerced him into going on strike. For the defence, witnesses testified that there was no strike leader, that the workers had simply walked out when their demands were rejected, and that the company had locked the gates after the strike began, preventing anyone from going back to work even if they had wished to. Finally, other witnesses were prevented from entering the court compound, and so were not able to testify in Mr. Sok Vy’s defence.
11. 299. The complainant adds that on 10 February 2005 Mr. Sok Vy was found guilty of “incitement to commit criminal acts” under article 60 of the Criminal Code, and given a one-year suspended sentence. The judge also imposed a two month suspended sentence for “damaging company property”, in spite of the fact that, in his written verdict, he had concluded that there was no evidence presented at the trial to find Mr. Sok Vy guilty of the charge. Moreover, the judge left open the possibility that Fortune Garment Co. may wish to sue Mr. Sok Vy in Civil Court for the losses incurred during the June strike; the company’s lawyer claimed at trial that the damages amounted to $300,000, but offered no evidence to support this claim. The ICFTU alleges that Mr. Sok Vy’s conviction, together with the legal actions brought against the ten members of the CCAWDU’s executive committee mentioned above, constitute a pattern of punishing workers for engaging in legitimate collective action by suing them for damages.
12. 300. The ICFTU indicates that, in the meantime, the Fortune Garment Co. continued to dismiss union activists. Mr. Yern Channy and Mr. Ly Lay were dismissed on 4 May 2005, and Ms. Keo Leakena was dismissed on 18 May 2005.
13. 301. The ICFTU states that the procedures to be followed before being able to legally strike are very long. When disputes arise, arbitration by the Ministry of Labour, followed by arbitration under the auspices of the Arbitration Council must first be pursued before a strike may legally be declared. Given that many strikes break out over immediate issues, such as dismissals of worker representatives, harassment by security guards, and non-payment of wages – issues for which no grievance mechanisms exist – it is not surprising that workers engage in irregular forms of action such as wildcat strikes rather than waiting for up to 37 days to take legal strike action. The ICFTU alleges that over 60 strikes took place over the past three years, none of which were held in accordance with applicable rules and procedures.
14. 302. In a communication dated 2 March 2006, the complainant refers to a 21 April 2005 Arbitration Council award concerning both Mr. Ly Lay and Mr. Sok Vy. The complainant states that the matter of the lay-offs of Mr. Ly Lay, Mr. Sok Vy and several other workers in the Fortune Garment Co. was brought before the Arbitration Council. All of the workers concerned, most of whom were trade unionists, accepted compensation for the lay-offs, except Mr. Ly Lay, who refused to accept the redundancy compensation given the fact that the lay-offs were due to the workers taking industrial action on four occasions, and also in his case due to his union activity. The company refused reinstatement but offered $302 in compensation. In view of this offer, the Arbitration Council found that Mr. Ly Lay should accept the compensation, and therefore rejected the call for reinstatement. However, no proper assessment was made as to whether his dismissal was lawful; nor was it clear from the award why Mr. Ly Lay’s reinstatement was rejected.
15. 303. With respect to Mr. Sok Vy, the complainant states that it was established in the award that he was dismissed in December 2004 for serious misconduct. The letter of dismissal was forwarded to the Labour Office in the province of Kandal, which on 21 December 2004 accepted the dismissal. On 22 December 2004 the CCAWDU appealed this decision, and the Ministry of Labour did not respond, implying approval of the Kandal Labour Office’s decision to uphold Mr. Sok Vy’s dismissal. According to Fortune Garment Co. he had falsified the information on his identification card (ID) just before he was elected union president, so as to appear three years older than he was, namely 25 years old, in order to obtain election; under section 286 of the Labour Law union officers must be at least 25 years old. According to the Arbitration Council, Mr. Sok Vy indicated that he had changed his ID to correct the birth date, which was wrong. The Arbitration Council found that, regardless of whether the birth date was wrong on the first ID, Mr. Sok Vy had supplied wrong information to his employer, whether when he was hired or at the time of the union election, and this amounted to serious misconduct. The Arbitration Council therefore deemed the dismissal legitimate and rejected his demand for reinstatement.
16. 304. According to the complainant, the Arbitration Council did not properly address the many aspects of the relationship between Mr. Sok Vy and Fortune Garment Co., especially with regard to the harassment he had endured prior to his election as union president, including his suspensions. Furthermore, deeming the change in birth date on the ID to be “serious misconduct” was unjustified: Mr. Sok Vy was not looking to gain anything from the employer in changing the birth date, and in any event the said act in no way affected the work he performed for the employer. The ICFTU also indicated that the dismissal of Mr. Sok Vy did not immediately follow the changing of the ID, as he was elected union president in August 2004, but dismissed in December 2004. The Arbitration Council, in summation, failed to thoroughly consider all of the aspects of his case. The ICFTU also adds that the legal age requirement of 25 years for trade union office bearers runs contrary to the right of workers to freely choose their own representatives.
17. 305. Finally, in its 2 March 2006 communication the complainant states that the Government has not provided information with respect to the Fortune Garment Co.’s dismissals of Mr. Yern Channy, Mr. Ly Lay and Ms. Keo Leakena.
18. B. The Government’s reply
19. 306. In communications dated 14 November 2005 and 17 October 2006, the Government states that the Arbitration Council issued an award to reject the complaint of the Coalition of Cambodian Apparel Workers’ Democratic Union (CCAWDU), which demanded that Fortune Garment Co. reinstate Mr. Sok Vy. It further transmitted a Khmer copy of the Arbitration Council award regarding Mr. Sok Vy and Mr. Ly Lay.
20. 307. The Government also indicates that Mr. Sok Vy was brought up on criminal charges in Kandal Provincial Court, and on 10 February 2005 was found guilty and sentenced to 14 months’ imprisonment. That same verdict also indicated that Fortune Garment Co. could bring civil charges against Mr. Sok Vy for damages.

C. The Committee’s conclusions

1. 308. The Committee notes that the allegations concern violations of the right to collective bargaining and the suspension and dismissal of trade union members for engaging in trade union activity. In addition to Mr. Sok Vy, ten members of the Coalition of Cambodian Apparel Workers’ Democratic Union’s (CCAWDU) executive committee were suspended on 20 December 2004, and 20 CCAWDU activists were dismissed on 31 January 2005.
2. 309. The Committee notes from the information supplied by the complainant that, following a strike taken by workers of the Fortune Garment Co. on 2 June 2004, the management of Fortune Garment Co. dismissed worker representative Mr. Sok Vy and filed criminal charges against him in Kandal Provincial Court. On 8 July 2004, Mr. Sok Vy was also forced, under pain of legal action and dismissal, to sign a letter stating that he would not press any more demands on the company in the future. On 13 December 2004 Mr. Sok Vy – by then president of the CCAWDU – was dismissed by the Fortune Garment Co.
3. 310. The Committee notes the Government’s indication that the Arbitration Council had issued an award rejecting Mr. Sok Vy’s claim for reinstatement. According to the complainant and a translated version of the arbitration award, the Arbitration Council upheld Mr. Sok Vy’s dismissal for serious misconduct as he had falsified his ID, listing his age as 25 years old in order to fulfil the requirement, as set forth in section 286 of the Cambodian Labour Law, that trade union office bearers be at least 25 years old. In this regard, the Committee recalls that the right of workers’ organizations to elect their own representatives freely is an indispensable condition for them to be able to act in full freedom and to promote effectively the interests of their members. For this right to be fully acknowledged, it is essential that the public authorities refrain from any intervention which might impair the exercise of this right, whether it be in determining conditions of eligibility of leaders or in the conduct of the elections themselves [see Digest of decisions and principles of the Freedom of Association Committee, 1996, 4th edition, para. 353]. The Committee therefore considers that the Arbitration Council’s finding of serious misconduct is based on a legal requirement that is incompatible with the principles of freedom of association. Accordingly, the Committee asks the Government to amend section 286 of the Labour Law so as to remove the age restriction on the right of workers to elect their own representatives in full freedom, and to keep it informed of developments in this regard.
4. 311. The Committee regrets that the Government otherwise does not respond to the serious allegations concerning Mr. Sok Vy’s treatment at the hands of his employer. Given that the Arbitration Council’s rejection of Mr. Sok Vy’s request for reinstatement is based on a legislative provision that is incompatible with the principles of freedom of association, the Committee considers reinstatement to be the most appropriate course of action, and requests the Government to take the necessary measures to ensure that Mr. Sok Vy is fully reinstated in his previous position. The Committee asks the Government to keep it informed of developments in this regard.
5. 312. With regard to Mr. Sok Vy’s criminal conviction for incitement to commit criminal acts and damaging company property, the Committee notes with concern the allegations of the imposition of a 14-month suspended sentence despite the conclusions in the judgement that there was insufficient evidence to find Mr. Sok Vy guilty of the charges, as well as the doubts raised over the due process guarantees provided during the trial. The Committee regrets that the Government has not submitted any information with respect to this allegation; it asks the Government to reply to these allegations and to supply a copy of the court decision without delay. It further requests the Government to indicate whether Mr. Sok Vy enjoys the right of appeal with respect to this judgement and if so whether any appeal has been made.
6. 313. The Committee notes that Mr. Sok Vy’s conviction is also of particular concern given that section 269(3) of the Labour Law disqualifies persons convicted of any crime from being elected to administrative and managerial posts in a professional organization. On this matter the Committee recalls that a law which generally prohibits access to trade union office because of any conviction is incompatible with the principles of freedom of association, when the activity condemned is not prejudicial to the aptitude and integrity required to exercise trade union office [see Digest, op. cit., para. 383]. The Committee therefore asks the Government to amend section 269(3) so as to bring it into conformity with the principles of freedom of association.
7. 314. The Committee notes that, according to the complainant and the arbitration award, the Arbitration Council rejected Mr. Ly Lay’s demand for reinstatement. The Arbitration Council instead upheld the offered compensation, in the amount of US$302, but made no determination as to whether his dismissal was lawful or provide justification for rejecting his reinstatement. The Committee regrets that the Government, aside from supplying a Khmer copy of the Arbitration Council award relating to Mr. Ly Lay, has not provided any other information with respect to this allegation. It further regrets that the Government has not submitted any information on the alleged suspensions and dismissals of the other trade unionists mentioned in the complaint. The Committee does note, however, from the arbitration award that some 100 workers had been dismissed (most of them union members) without reason (a fact acknowledged by the employer) and that the award found that, in such cases, it was sufficient to pay the compensation provided for in the law, which had been done. Under these circumstances, and considering the seriousness of these allegations involving the dismissal of a significant number of trade union officials and activists without any review as to the possible anti-union nature of the motives behind this act, the Committee requests the Government promptly to carry out an independent inquiry into these allegations of anti-union discrimination. It asks the Government to ensure that, if it is found that the workers were dismissed as a result of their legitimate trade union activities, they are reinstated in their posts without loss of wages or, if it is found by an independent judicial body that reinstatement in one form or another is not possible, that they are paid adequate compensation beyond that provided in the law for simple unmotivated dismissal, but rather such compensation as to represent a sufficient dissuasive sanction for anti-union dismissal. The Committee asks the Government to keep it informed of developments in this regard.
8. 315. The Committee underscores that these allegations concern the suspension or dismissal of a significant number of trade unionists, on separate occasions. In this connection, the Committee emphasizes that the Government is responsible for preventing all acts of anti-union discrimination, and furthermore that the legislation must make express provision for appeals and establish sufficiently dissuasive sanctions against acts of anti-union discrimination to ensure the practical application of Articles 1 and 2 of Convention No. 98 [Digest, op. cit., para. 743]. Noting additionally that, according to the complainants, of the 20 CCAWDU activists allegedly dismissed on 31 January 2005, 17 had accepted their severance pay, whereas the other three were challenging their termination (according to the arbitration award some 100, mostly union members, were dismissed), the Committee is compelled to recall that it would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can, in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker’s trade union membership or activities [Digest, op. cit., para. 707]. The Committee requests the Government to take the appropriate steps without delay to ensure that these principles are fully applied and to keep it informed of developments in this respect.
9. 316. Finally, the Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.