Observation (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Cambodge (Ratification: 1999)

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Observation

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The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 27 September 2023 concerning: numerous obstacles to union registration; violence against trade unionists and impunity of perpetrators; misclassification of collective labour disputes and denial of judicial remedies; and gaps remaining in the Cambodian legislation which are incompatible with the Convention. Moreover, the ITUC alleges specific cases of serious union busting, police violence and the arrest and imprisonment of trade union leaders. The ITUC further refers to serious incidents of reported violations of the basic civil liberties of trade unionists including repression of their freedom of expression, accompanied by police intimidation and the persecution of union leaders for participating in peaceful strikes. The ITUC expresses its deep concern at the widespread anti-union climate in the country and the persistence of longstanding legal and practical obstacles to the exercise of freedom of association. The Committee requests the Government to provide its detailed comments on these serious allegations, as well as the remaining matters raised by the ITUC in its 2021 observations.

The Committee deeply regrets that the Government has not provided a report this year on the application of the Convention nor on the progress made in respect of the recommendations of the direct contacts mission which took place in March 2022 at the request of the Conference Committee on the Application of Standards in June 2021. The Committee therefore finds itself obliged to consider the matters raised in its previous comments and the direct contact mission recommendations without the benefit of any feedback from the Government on the measures that it may have taken or envisaged.

Trade union rights and civil liberties

Murders of trade unionists. The Committee recalls that its previous comment related to its long-standing recommendation, as well as that of the Conference Committee on the Application of Standards, to carry out expeditious and independent investigations into the murders of trade union leaders Chea Vichea and Ros Sovannareth (in 2004) and Hy Vuthy (in 2007). While noting that the Government of Cambodia came before the Committee on Freedom of Association within the framework of paragraph 69 of its special procedures, with a view to informing the Committee of the progress made in this regard (Case No. 2318, 404th Report, November 2023, paragraph 6), the Committee must observe with deep concern that the Government has yet to provide any information on the progress made in this regard. Recalling once again the need to conclude the ongoing investigations and to bring to justice the perpetrators and instigators of these crimes, the Committee firmly urges the competent authorities to take all necessary measures to expedite the process of investigation and report on meaningful progress.

Incidents during the January 2014 demonstrations. As regards the trade unionists facing criminal charges in relation to incidents during the January 2014 demonstrations, the Committee, in its previous comment requested the Government to continue providing information on the pending legal procedures against trade unionists, in particular on any verdicts issued, and to provide detailed information on any court rulings resulting from the conclusions of the fact-finding committees investigating the allegations of killings, physical violence and arrests of protesting workers, as well as all materials from the fact-finding committees’ reports that do not directly implicate internal affairs of the country. The Committee notes the 2022 recommendation of the direct contacts mission that the Government review the lists of workers who still have criminal charges pending with the unions concerned and provide greater clarity in respect of any remaining charges and action taken, as well as any final court judgments. The Committee deeply regrets that the Government has provided no information in this respect, over one year since the direct contacts mission visited the country and issued its recommendations. The Committee therefore urges the Government to review the list of pending cases with the trade unions concerned and provide detailed information on each and every case of criminal prosecution related to the January 2014 demonstrations.

Violence, intimidation, arrest and imprisonment of trade unionists for carrying out peaceful industrial action. Training of police forces in relation to industrial and protest action. The Committee further recalls the conclusions of the Committee on the Application of Standards calling upon the Government to take all necessary measures to stop arbitrary arrest, detention and prosecution of trade unionists for undertaking legitimate trade union activity. The Committee notes with deep concern the latest allegations from the ITUC of ongoing arrests of workers involved in a dispute with a casino operation. The Committee notes that this matter has been raised before the Committee on Freedom of Association, which urged the Government to ensure the immediate and unconditional release of the union President (see 404th Report, paragraphs 203 and 207(c)). Recalling its previous request that the Government provide information on the number of police officers participating in training sessions, the duration of such training and the subjects covered, including whether disciplinary consequences of the use of excessive force are part of the training, the Committee notes the direct contacts mission recommendation concerning the criminalization and politicization of trade union activity and the need for clear instructions to be given so that resort to police in relation to strike action is only made if there is a genuine threat to public order and so that the intervention is proportionate to the threat to public order and avoids the danger of excessive violence. The Committee urges the Government to ensure that all trade unionists detained for undertaking legitimate trade union activity are immediately released. It requests the Government to provide detailed information on the measures taken to consider further measures, including through the development of guidelines, to ensure that peaceful industrial action is not repressed. It also requests information on the progress made to ensure regular and systematic training programmes of labour inspectors, labour dispute officers, police officers, workers and employers, as recommended by the direct contacts mission. Regretting that the Government has not provided any information in reply to its previous request, the Committee reiterates its request for detailed information on the number of police officers trained, the duration of the training, the subjects covered and whether disciplinary consequences for the use of excessive force are also part of the training.

Legislative issues

Article 2 of the Convention. Rights of workers and employers, without distinction whatsoever, to establish and join organizations. Civil servants and public sector teachers.Noting with regret that the Government has not provided any information on the manner in which the freedom of association rights of civil servants are protected, the Committee must once again urge the Government to take appropriate measures, in consultation with the social partners concerned, to ensure that civil servants – including public sector teachers – who are not covered by the Law on Trade Unions (LTU) are guaranteed their rights under the Convention, and that the legislation applicable to them is amended accordingly.

Domestic workers. The Committee recalls that in its previous comments it observed the deep concern expressed by workers’ organizations relating to the difficulties faced by domestic workers and workers in the informal economy in forming or joining unions, since the LTU provides for an enterprise union model, whose requirements are often very difficult to meet by these workers. The Committee requests the Government to provide detailed information on the steps taken to promote the full and effective enjoyment of the rights under the Convention by domestic workers and workers in the informal economy, and recalls that consideration of the adaptation of the legislative framework to expressly enable the formation of unions by sector or profession may facilitate the exercise of the rights under the Convention by those workers.

Application in practice. Trade union registration. The Committee recalls the 2021 conclusions of the Committee on the Application of Standards calling upon the Government to ensure that workers are able to register trade unions through a simple, objective and transparent process. The Committee notes in this respect the conclusions and recommendations of the 2022 direct contacts mission that practical hurdles to the formation and functioning of trade unions, particularly on trade union registration or recognition of their most representative status, should be rapidly addressed. The direct contacts mission proposed that simplifying the registration forms and ensuring that clear instructions are given to Ministry officials that only the requirements that are specifically set out in the law can be requested in order to grant registration would facilitate the process. The direct contacts mission further recommended that all discretionary authority be eliminated (such as requests to the union to provide the employee list) and training provided, including with ILO technical assistance, to build the capacity of Ministry officials and trade unions in the understanding of expectations in this regard. Lastly, the direct contacts mission suggested that an online database showing requests for registration, pending issues and final resolution would help the transparency of the process and demonstrate the consistency of application. Regretting that the Government has not provided any information on the steps taken to address the various practical hurdles to registration, the Committee urges it to provide detailed information in this regard.

Articles 2 and 3. Financial audit and maintenance of registration. In its previous comment, the Committee observed that the 2019 amendments to the LTU introduced: (i) a new section 27 requiring organizations not only to present a financial statement to their members but also to have them audited by an independent firm if so requested by either any donor or by a percentage of its members (10 per cent for local unions and 5 per cent for federations or confederations); and (ii) a new section 17 on maintenance of registration, requiring not only the submission of annual financial statements and activity reports, but also their audit by an independent audit firm if so requested by either any donor or by a percentage of its members (10 per cent for local unions and 5 per cent for federations or confederations). Observing that these provisions could subject unions to the threat of frivolous audit requests, which would entail an onerous burden to maintain registration, the Committee once again requests the Government, in consultation with the social partners concerned, to revise sections 17 and 27 of the LTU, so that audits to the financial statements and activity reports are only required if there are serious grounds for believing that the actions of an organization are contrary to its rules or to the law.

Article 3. Right to elect representatives freely. Requirements for leaders, managers, and those responsible for the administration of unions and of employer associations. In the absence of any information from the Government, the Committee once again requests the Government to take the necessary measures to remove the requirement to read and to write Khmer from sections 20, 21 and 38 of the LTU and to provide information on the progress made in this regard.

The right of 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 of Labour and Vocational Training (MLVT) 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. Regretting that the Government has not provided any additional information in this respect, the Committee requests the Government to indicate the steps taken, in consultation with the social partners concerned, to amend section 326 of the Labour Law and to provide information on its application in practice.

The Committee also noted in its previous comments that the ITUC denounced, as common practices, the replacement of workers and the granting of injunctions to preclude industrial action, even when all the procedures had been followed by the unions. The Committee notes the conclusions of the direct contacts mission concerning the need to clarify the role of the Committee on Strike and Demonstration in labour dispute resolution and ensure that it does not restrict the legitimate right of workers’ organizations to engage in industrial action in defence of their members’ interests. The Committee once again 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.

Article 4. Dissolution of representative organizations. The Committee recalls that its previous comments concerned section 28(2) of the LTU, which provides that a union is automatically dissolved in the event of a complete closure of the enterprise or establishment and the need to ensure that workers’ or employers’ organizations should only be dissolved on the basis of the procedures laid down by their statutes, or by a court ruling. The Committee once again requests the Government to take the necessary measures to amend section 28 of the LTU by repealing section 28(2) and to provide information on the steps taken in this regard.

Grounds to request dissolution by the Court. Recalling that the manner in which members may request dissolution should be left to the organization’s by-laws, the Committee once again requests the Government to take the necessary measures to amend section 29 of the LTU so as to leave to the unions’ or employers’ associations own rules and by-laws the determination of the procedures for their dissolution by their members.

Practical application

Independent adjudication mechanisms. In its previous comments, the Committee noted the ITUC’s observations denouncing the refusal of the MLVT to allow upper-level trade unions to represent or provide support to their members in collective disputes and the example given where the authorities allegedly declared that leaders of federations and confederations were not allowed to speak during the meeting of a collective labour dispute conciliation case. The Committee regrets that the Government has not provided any information in reply and observes that these concerns relate to the functioning of independent adjudication mechanisms, such as the Arbitration Council (AC). The Committee recalls in this respect its previous comments concerning the importance of ensuring the effectiveness of the judicial system as a safeguard against impunity, while at the same time, its encouragement to the Government in its commitment to strengthen the AC as an important means to protect workers’ freedom of association rights during labour disputes. The Committee notes from the conclusions of the direct contacts mission that there were several complaints regarding the classification of disputes before the AC, such as the classification of termination of a trade union officer as an individual dispute, preventing that specific allegation from being heard. The Committee notes the recommendation in the report of the direct contacts mission that dismissals of trade union leaders prior to or after the union’s registration should be considered as a collective dispute that may be referred for rapid action to the AC. Additionally, the direct contacts mission recommended that any evolution in the functioning of the AC considered by the Government should take place only after full and meaningful consultations with all parties and stakeholders. Lastly, the Committee notes the strong recommendation of the direct contacts mission that urgent action be taken to recruit and train new arbitrators and that union confederations and federations be able to represent their members without requiring prior approval from the MLVT. Emphasizing the importance of the independence of adjudication mechanisms, the Committee requests the Government to provide detailed information on any evolution in the functioning of the AC, and to include statistics on the number and nature of disputes brought before it and the extent of compliance with non-binding AC awards, as well as on any court rulings to ensure that the AC awards, when binding, are duly enforced.

Finally, the Committee notes that the direct contacts mission observed that the road map and progress reports on the implementation of the 2017 direct contacts mission’s recommendations were to some degree administratively complex, focusing more on procedure than action-oriented results. The direct contacts mission therefore suggested that the Government simplify the road map and its progress report, in full consultation with the social partners and with the support of the ILO, to identify priority areas of urgent action on the basis of its recommendations and those of the ILO supervisory bodies with clear deliverables and time frames, ensuring accountability and transparency. Regular review of the adequacy of the steps taken should be conducted with all the parties involved. The Committee regrets that the Government has not provided any information on the steps taken in this regard and requests it to indicate the measures taken to engage the social partners concerned in prioritizing areas for action with reference to all its above requests, setting out clear deliverables, responsible bodies and time frames.

The Committee notes with deep concern: the long-standing nature of important issues raised in this comment; the lack of progress on the development of a road map with the social partners, as recommended by the DCM, prioritizing matters for rapid attention and resolution; the new allegations of serious violations of basic civil liberties essential to the exercise of freedom of association, including the arrest and detention of trade unionists and; the total absence of a report from the Government this year. In these circumstances, the Committee considers that this case meets the criteria set out in paragraph 109 of its General Report to be asked to come before the Conference.

[The Government is asked to supply full particulars to the Conference at its 112th Session and to reply in full to the present comments in 2024.]