Interim Report - REPORT_NO359, March 2011

Japan–APSARA Safeguarding Angkor Authority (JASA) and the Angkor Golf Resort

1. 303. The Committee last examined this case at its November 2009 meeting, when it presented an interim report to the Governing Body [see 355th Report, approved by the Governing Body at its 306th Session (2009), paras 327–357].
2. 304. The Government sent partial information on the allegations made in a communication dated 9 March 2010.
3. 305. 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).

A. Previous examination of the case

1. 306. In its previous examination of the case in November 2009, deploring that despite the time that had elapsed, the Government had not provided any information on the alleged acts of anti-union discrimination, including unfair dismissals, and the alleged refusal to negotiate with the trade union concerned, the Committee made the following recommendations regarding the matters still pending [see 355th Report, paras 327–357]:
   • (a) The Committee deplores the lack of cooperation shown by the Government and strongly urges it to be more cooperative in the future.
   • (b) The Committee urges the Government to take steps without delay to adopt an appropriate legislative framework to ensure that workers enjoy effective protection against acts of anti-union discrimination, including through the provision of sufficiently dissuasive sanctions and rapid, final and binding determinations. The Committee invites the Government to further avail itself of the technical assistance of the Office in this regard.
   • (c) The Committee urges the Government to immediately carry out a full and independent investigation into all the allegations in this case and, if they are proven to be true, to take the necessary steps to ensure that the trade unionists dismissed, or whose contracts have not been renewed, are fully reinstated without loss of pay. In the event that the reinstatement of the dismissed workers concerned is not possible for objective and compelling reasons, the Committee requests the Government to ensure that the workers concerned are paid adequate compensation which would constitute a sufficiently dissuasive sanction against anti-union dismissals. It requests the Government to inform it of the outcome of the investigation and of all measures of redress taken.
   • (d) The Committee requests the Government to take the necessary measures, including the issuance of appropriate on-site instructions, to ensure that the JASA union may hold elections, and that the workers may participate in these elections free from fear of dismissal or reprisal of any kind. It requests to be kept informed of developments in this regard.
   • (e) The Committee requests the Government to take the necessary measures to ensure that both APSARA and the Angkor Golf Resort engage in good faith negotiations with their respective unions and to keep it informed in this regard.
   • (f) The Committee draws the Governing Body’s attention to the serious and urgent nature of this case.

B. The Government’s reply

1. 307. In its communication dated 9 March 2010, the Government sent partial information in respect of the matters examined in this case.
2. 308. The Government indicates, as regards the dispute involving the Authority for the Protection and Management of Angkor and the Region of Siem Reap (APSARA) and the Japan–APSARA Safeguarding Angkor Authority (JASA), that the Department of Labour Dispute and Siem Reap Provincial Department of Labour and Vocational Training has tried to seek a solution with the APSARA authority and JASA organization in accordance with legal procedures, but that the case could not be reconciled and has therefore been forwarded to the Arbitration Council on 22 December 2009.
3. 309. The Government indicates, as regards the dispute involving the Angkor Golf Resort, that the abovementioned Department of Labour Dispute could not find a solution in this case and that it forwarded it to the Arbitration Council on 11 January 2010.

C. The Committee’s conclusions

1. 310. The Committee recalls that the present case involves allegations of acts of anti-union discrimination at three workplaces, including unfair dismissals, which, according to the complainant organization, took place in the following circumstances:
   • (a) On 21 December 2006, the APSARA, apparently after having ignored repeated requests from the union for negotiations, issued a statement demanding that its employees renounce membership in the union concerned, should they wish to retain their employment, and on 22 December 2006, dismissed 14 union leaders and activists. The Siem Reap Provincial Labour Department attempted conciliation on 22 March and 14 September 2007; in both instances the APSARA refused to reinstate the 14 dismissed trade union leaders and activists. The APSARA also allegedly failed to attend a conciliation meeting scheduled for 25 October 2007, and neither the Provincial Labour Department nor the Ministry of Social Affairs, Labour, Vocational Training and Youth Rehabilitation (MOSALVY), have since undertaken further measures to resolve the dispute, including by forwarding it to the Arbitration Council.
   • (b) On 28 February 2005, the Japanese Government Team for Safeguarding Angkor (JSA) terminated its employment contracts with trade union leaders and activists and closed its restoration project site. It resumed operations on 27 March 2006 at a different restoration site under its new name, the JASA, and retained 90 per cent of the workers previously employed at JSA – but did not re-employ 16 union leaders and activists. On 25 April and 5 July 2007, the Cambodian Construction Workers Trade Union Federation (CCTUF, the complainant’s affiliate) addressed communications to MOSALVY, which in turn requested the Siem Reap Provincial Labour Department to take measures to resolve the outstanding issues. However, no resolution could be reached in this case.
   • (c) Finally, as concerns the Angkor Golf Resort, on 28 February 2007, the President of the union concerned, Yun Sokha, was dismissed without sufficient reason – the same day on which inconclusive negotiations with the union were held. The management also suspended its operations on 7 April 2007 and resumed operations approximately three weeks later, calling back only those workers who either had not joined the union or had agreed to renounce membership therein. Yun Sokha, union VicePresident Thy Sothea and 40 others who had refused to resign from the union were not rehired. On 9 June and 5 July 2007, the CCTUF submitted complaints to the Siem Reap Provincial Labour Department seeking reinstatement of the trade union leaders and members at the Angkor Golf Resort, but the Labour Department failed to respond to the union and there had been no resolution to the issues.
2. 311. Submission of the cases to the Arbitration Council. In its previous examination of the case, the Committee had considered the inadequacy of the authorities’ response – in particular their failure to submit the complainant’s cases to the Arbitration Council – to have been especially detrimental to the complainant’s ability to secure an effective remedy for the alleged violations. Accordingly, the Committee welcomes the information provided by the Government that the Department of Labour Dispute and Siem Reap Provincial Department of Labour and Vocational Training has forwarded both the case regarding the dispute involving the APSARA authority and the JASA organization, as well as the case concerning the Angkor Golf Resort, to the Arbitration Council, respectively on 22 December 2009 and 11 January 2010. The Committee requests the Government to keep it informed of any development in this regard and to supply a copy of the decisions of the Arbitration Council once adopted. The Committee expects that a decision will be taken without delay, through an impartial and independent procedure, and that if the proceeding demonstrates the anti-union character of the dismissals, that the dismissed union leaders and activists will be immediately reinstated without loss of pay or benefits. If, while noting the anti-union nature of the dismissals, the Arbitration Council considers that the reinstatement of the dismissed trade union leaders and activists is not possible for objective and compelling reasons, the Committee urges the Government to take the necessary measures to ensure that the workers concerned are paid adequate compensation which would constitute a sufficiently dissuasive sanction against anti-union dismissals. Moreover, the Committee recalls that acts calculated to make the employment of a worker subject to the condition that he or she not join a union or shall relinquish their trade union membership constitutes a violation of Article 1 of Convention No. 98, and urges the Government to ensure that any infringement found in this respect will be sufficiently and appropriately sanctioned.
3. 312. Legislative framework. During its previous examination of the case, the Committee had observed that the present case depicts an insufficiency of laws and procedures to protect workers against acts of anti-union discrimination and that, as with other complaints against the Government, the present allegations were similar to earlier allegations in their depiction of an industrial relations climate characterized by acts of anti-union discrimination, often culminating in dismissals, and an apparent lack of effectiveness of the sanctions provided for in the law to protect workers against such acts [see Case No. 2468, 344th Report, para. 436]. The Committee had further recalled that, in another complaint against the Government, it had noted with deep concern the lack of an independent and effective judiciary and had consequently urged the Government to take the necessary steps to ensure the independence and effectiveness of the judicial system, including through capacity-building measures and the institution of safeguards against corruption [see Case No. 2318, 351st Report, para. 250].
4. 313. Finally, the Committee notes with regret the considerable length of time that has elapsed since the dismissals of the workers concerned – respectively, in February 2005 (as to the dispute involving the JSA/JASA), December 2006 (as regards the dispute involving the APSARA) and April 2007 (as to the Angkor Golf Resort).The Committee once again recalls that the Government is responsible for preventing all acts of anti-union discrimination and ensuring that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned. Furthermore, 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 [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 817 and 822]. In this context, the Committee once again urges the Government, as it has in previous cases, to take steps without delay to adopt an appropriate legislative framework to ensure that workers enjoy effective protection against acts of anti-union discrimination, including through the provision of sufficiently dissuasive sanctions and rapid, final and binding determinations. The Committee invites the Government to further avail itself of the technical assistance of the Office in this regard.
5. 314. Trade union elections. The Committee further recalls that it had requested the Government to take the necessary measures, including the issuance of appropriate on-site instructions, to ensure that the JASA union may hold its elections, and that the workers may participate in these elections free from fear of dismissal or reprisal of any kind. The Committee notes with regret that the Government does not provide any information on this point in its communication. It therefore once again requests the Government to guarantee the right of the JASA union to elect its representatives in full freedom and without fear of reprisals of any kind, and to indicate the steps taken in this regard and to inform it as to when the elections of the JASA union officers were held.
6. 315. Collective bargaining. In its previous examination of the case the Committee had noted that, according to the complainant, the dismissals at the APSARA and the Angkor Golf Resort were precipitated by demands to engage in collective negotiations from the unions concerned – which were both certified as most representative by MOSALVY. In this respect, the Committee once again recalls the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations. It is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover, genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties [see Digest, op. cit., paras 934–935]. Noting furthermore that Prakas No. 305 of 22 November 2001, lays down the obligation of the employer to negotiate with the union possessing most representative status, the Committee once again requests the Government – in the absence of any information provided on this issue in its communication – to take the necessary measures to ensure that both the APSARA and the Angkor Golf Resort engage in good faith negotiations with their respective unions, and to keep it informed in this regard.