Informe provisional - Informe núm. 332, Noviembre 2003

1. 382. The complaint is contained in a communication dated 25 April 2003 from the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC).
2. 383. The Government provided its observations in a communication dated 28 May 2003.
3. 384. 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 complainant’s allegations

1. 385. In its communication of 25 April 2003, the complainant organization states that Messrs. Hak Bun Thoeun and Chea Vichea, respectively General Secretary and President of the FTUWKC, and some 30 other union members, have been dismissed by the INSM Garment Factory (located in the Chum Chao District of Phnom Penh) as a sanction for helping to establish the trade union in that company, whose actions demonstrate its wish to destroy the union. The workers involved filed two complaints with the Government, which failed to protect their right to organize; instead, it used delay tactics and encouraged those leaders who had been dismissed to accept money from the management in order to eliminate the union. The complainants submit that they have exhausted the labour dispute system in the country and have waited six months for the law to be enforced by the Government, which has failed to ensure freedom of association, as guaranteed in the Cambodian Constitution and labour law and ILO Conventions.
2. 386. In a communication of same date, Ms. Muth Sour, Vice-President of the FTUWKC at the Top Clothes Garment Factory (located in the Ang Snoul District, Kandal Province, near Phnom Penh) states that she has been dismissed on 12 February 2003 because she had insisted that the management include some union activists on the list of shop steward candidates at the company. These actions violate articles 279, 280, 286 and 288 of the Cambodian labour law, dealing with representativeness of trade unions and their collective bargaining rights, as well as Conventions Nos. 87 and 98. According to the complainant, the factory management has taken retributive action against workers who wish to unionize and has generally subjected workers to poor treatment. On 18 February 2003, Ms. Muth Sour filed a complaint with the Minister of Labour, requesting to be reinstated in her previous position, but did not receive any reply. She also submitted a complaint to the Minister of Commerce, who has the power to punish factories that violate union rights, but no action was taken. The complainant organization submits that they have used all the available procedures but that the Government fails to protect workers’ right to organize trade unions.
3. 387. In a communication dated 14 April 2003, Messrs. Kim Young, Sorn Mean and Ly Bunseyi, respectively, union President, Vice-President and Secretary of the Coalition of Cambodian Apparel Workers Democratic Union (CCAWDU) at the Splendid Chance Garment Factory (located in Phnom Penh) state that, soon after the creation of the union, the management of the factory started to intimidate them to prevent them from being active in the union. In late November 2002, the management asked the police to arrest them and have them appear in the Phnom Penh Court. The Court released them and they continued their organizational activities. They were dismissed as soon as the union was established in early January 2003. The complainants submitted three formal complaints on 7 January 2003 with the Ministry of Labour, the Ministry of Commerce and the National Assembly, asking for their reinstatement, but the authorities failed to address their complaints and to protect their right to organize, in violation of Cambodian law and Constitution.

B. The Government’s reply

1. 388. In its communication of 28 May 2003, the Government states in connection with the situation at the INSM Garment Factory (dismissal of General Secretary and President of the FTUWKC and of 30 union members) that the name mentioned in the complaint is Mr. Hak Bun Thoeun, whereas the case concerns a Mr. Hak Chan Thoeun. Therefore the Labour Inspection Department cannot ascertain whether this name is correct or not and the protection of the labour law cannot be applied. That being so, the plaintiff is fully entitled to file a complaint to the competent court.
2. 389. As regards the dismissal of Ms. Muth Sour, Vice-President of the FTUWKC, at the Top Clothes Garment Factory, the Government indicates that this case could not be settled, in spite of a long process of conciliation. She maintained her position, without argument or realistic basis, that she was fired her because she is the leader of the union. However, the management of the company also stands firm in its position that Ms. Muth Sour had made serious mistakes and did not want to employ her any more. The Ministry has already done all it could do, has no power to force the parties to comply with its opinion, and must let the parties continue with their case in the competent court.
3. 390. With respect to the dismissal of trade union executives of the CCAWDU at the Splendid Chance Garment Factory, the Government states that this case has been investigated on 25 December 2002 by a group of people composed of officials from the Ministry of Social Affairs and Labour, Vocational Training and Youth Rehabilitation (MOSALVY) and of staff of the Employers’ Association. After verification, they concluded that the case is groundless and that this was only a complaint without realistic basis and a misunderstanding.
4. 391. The Government adds that the Ministry has done its best to protect the rights of trade unions by applying the provisions of the labour law, but that it cannot protect those who abuse the rights of the other party, or do not respect the law. In some cases, disputes have happened and have been settled by the parties themselves; the Ministry has no power to interfere in such cases. The complaint filed by Mr. Chea Vichea is groundless, and the trade unions under his leadership represent only a small number of workers. Many other workers’ organizations, which are currently the most representative unions in Cambodia, comply with all the regulations issued by the Ministry.

C. The Committee’s conclusions

1. 392. The Committee notes that this complaint concerns various allegations of anti-union discrimination, harassment and dismissals at three private companies in the garment and textile industry in Cambodia.
2. 393. As regards the dismissal of the General Secretary of the FTUWKC at the INSM Garment Factory, the Committee notes that Mr. Hak Bun Thoeun alleges that he has been dismissed as a sanction for helping to establish a trade union in the company. The Government limits itself to stating that the name of the General Secretary mentioned in the complaint differs from the name mentioned (Mr. Hak Chan Thoeun) in “a” case on which it does not provide any detail; the Government adds that the Labour Inspection Department cannot ascertain whether this name is correct or not, that the protection of the labour law cannot be applied, and that the plaintiff should file a complaint to the competent court. Noting that this case involves the alleged dismissal of a senior trade union official for exercising rights protected by the applicable Conventions, both ratified by Cambodia, the Committee considers that in such a serious case, the authorities should not let a technicality impede the full application of legal provisions, the aim of which is precisely to protect trade union leaders and members workers against anti-union discrimination. The Committee requests the Government, in cooperation with the FTUWKC and the employer, to take appropriate steps to ascertain the identity of the person concerned 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. The Committee requests the Government to keep it informed of developments in this respect.
3. 394. As regards the substantive aspects of the situation at the INSM Garment Factory, the Committee recalls 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; 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. Such guarantee in the case of trade union officials is also necessary to ensure 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, 1996, 4th edition, para. 724]. The Committee also recalls that necessary measures should be taken so that trade unionists who have been dismissed for activities related to the establishment of a union are reinstated in their functions if they so wish [Digest, op. cit., para. 703]. In addition, taking into account the financial incentives allegedly offered in order to eliminate the union, the Committee points out that the protection against anti-union discrimination is insufficient if the legislation is such that employers can in practice, on condition that they pay the compensation prescribed by law for unjustified dismissal, dismiss any worker, if the true reason is his trade union membership or activities [Digest, op. cit., para. 707]. The Committee urges the Government to ensure, in cooperation with the employer concerned, that these principles are fully applied and to keep it informed of developments in this respect.
4. 395. Regarding the President (Mr. Chea Vichea) and the 30 other union members of the FTUWKC who have also been dismissed at the INSM Garment Factory in similar circumstances, the Committee notes that the Government does not provide any information, and therefore requests it to provide its observations in this respect, after having obtained the relevant information from the employer concerned. The Committee also reminds the Government that the principles mentioned above apply in such circumstances; it urges it to ensure, in cooperation with the employer concerned, that the workers concerned 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. The Committee requests the Government to keep it informed of developments in this respect.
5. 396. Concerning the case of Miss Muth Sour at the Top Clothes Garment Factory, the Committee notes that the allegations concern the dismissal of another FTUWKC official, in a context of anti-union discrimination. According to the information summarily provided by the Government, the parties differ completely in their appreciation of the situation: the complainant maintains that she has been dismissed because she is the leader of the union; the employer maintains that she has made serious mistakes and does not want to employ her any more. The Government adds that it has already done all it could do, that it has no power to force the parties to comply with its opinion, and must let the parties go on with the court case. The Committee requests the Government to provide it with a copy of the court’s decision as soon as it is issued. If the dismissal resulted from Ms. Muth Sour’s 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. The Committee requests the Government to keep it informed of developments in this respect.
6. 397. As regards the situation at the Splendid Chance Garment Factory and the dismissal of three trade union officials of the CCAWDU in that company, the Committee notes that these union officials were subjected to intimidation soon after the creation of the union, were once arrested by police and taken to court, and were dismissed as soon as the union was established in January 2003. According to the Government, this case has been investigated in December 2002 by a group composed of officials of the Ministry and of staff of the Employers’ Association, which concluded that the case was groundless and was only a complaint without realistic basis. The Committee notes: the coincidental timing between the establishment of the union and the various acts of anti-union discrimination culminating in the dismissal of the three union executives; the fact that only some staff of the Employers’ Association, and no representatives of the union, participated in the investigation in question; and that the investigation took place before the dismissals. The Committee emphasizes that complaints against acts of anti-union discrimination should normally be examined by national machinery which, in addition to being speedy, should not only be impartial but also be seen to be such by the parties concerned, who should participate in the procedure in an appropriate and constructive manner [see Digest, op. cit., para. 750], which was obviously not the case here. The Committee requests the Government to take appropriate measures so that the three union officials 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. The Committee requests the Government to keep it informed of developments in this respect.
7. 398. As regards the Government’s contention that the trade unions under the leadership of the President of the FTUWKC represent only a small number of workers, the Committee emphasizes the importance it attaches to the fact that workers and employers should in practice be able to establish and join organizations of their own choosing in full freedom [see Digest, op. cit., para. 274].