The Committee took note of the written and oral statements provided by the Government representative and the discussion that followed.

The Committee expressed deep concern at the continuing acts of violence against workers, the arrests of trade unionists in connection with their activities as well as the lack of effective and timely investigations in relation to these incidents.

In this respect, the Committee urges the Government to:

• investigate all allegations of violent repression of trade union activity and detention of trade union leaders;
• take all necessary measures to expedite the investigations into the murders of trade union leaders Chea Vichea and Ros Sovannareth (in 2004) and Hy Vuthy (in 2007) and ensure that the perpetrators of the crimes are brought to justice;
• undertake all necessary efforts to settle the legal proceedings against trade unionists in connection with the incidents during the January 2014 demonstrations, ensure that no criminal charges or sanctions are imposed in relation to the peaceful exercise of trade union activities and drop all criminal charges for those trade unionists charged in connection with the January 2014 demonstrations; and
• take all necessary measures to stop arbitrary arrest, detention and prosecution of trade unionists for undertaking legitimate trade union activity.

The Committee also noted that, while some positive steps have been achieved in bringing the law in line with the Convention, serious compliance issues remain unaddressed.

Having examined the matter and taking into account the Government’s submissions and the discussion that followed, the Committee calls upon the Government of Cambodia to:

• provide the reports of the three committees charged with investigations into the murders of, and violence perpetrated against, trade union leaders to the Committee of Experts;
• ensure that acts of anti-union discrimination are swiftly investigated and that, if verified, adequate remedies and dissuasive sanctions are applied;
• with the help of ILO technical assistance, develop guidelines, a code of practice or a handbook on the policing and handling of industrial and protest actions;
• amend the Law on Trade Unions, in consultation with the social partners, to ensure compliance with the Convention;
• ensure that workers are able to register trade unions through a simple, objective and transparent process;
• continue to identify appropriate legal measures, in consultation with the social partners, to ensure that teachers, domestic workers and civil servants not covered by the Law on Trade Unions (LTU) have the freedom of association rights under the Convention;
• repeal the literacy requirement in sections 20, 21 and 38 of the LTU; repeal paragraph 2 of section 28 of the LTU on the automatic dissolution of workers’ organizations in case of complete closure of an enterprise or establishment and repeal section 29 of the LTU on the dissolution of employers’ and workers’ organizations initiated by members of those organizations;
• discuss with the social partners the possibility of allowing the formation of employers’ and workers’ organizations by sector or profession; and
• increase its efforts to make the Arbitration Council an effective and sustainable institution in handling labour disputes and ensure that binding Arbitration Council decisions are effectively enforced in law and in practice.

The Committee requests the government to provide information on the measures taken on all the above matters to the Committee of Experts before its November 2021 meeting.

Finally, the Committee recommends that the Government accept a direct contacts mission as soon as possible in order to give full effect to these conclusions and report progress to the Committee of Experts before its November 2021 meeting.

The Committee took note of the oral statements made by the Government representative and the discussion that followed.

The Committee expressed deep concern at the acts of violence which resulted in the death, injury and arrest of workers.

Taking into account the discussion, the Committee called upon the Government of Cambodia to:

- ensure that freedom of association can be exercised in a climate free of intimidation and violence against workers, employers and their respective organizations;

- provide the reports of the three committees charged with investigations into the murders of, and violence perpetrated against, trade union leaders to the Committee of Experts, and ensure that the perpetrators and instigators of the crimes are brought to justice;

- ensure that acts of anti-union discrimination are swiftly investigated and that, if verified, adequate remedies and dissuasive sanctions are applied;

- keep under review the Trade Union Law, closely consulting employers’ and workers’ organizations, with a view to finding solutions that are compatible with Convention No. 87;

- ensure that workers are able to register trade unions through a simple, objective and transparent process;

- ensure that teachers, civil servants, domestic workers and workers in the informal economy are protected in law and practice consistent with Convention No. 87;

- ensure that all trade unions have the right to represent their members before the Arbitration Council;

- complete, in consultation with workers’ and employers’organizations, the proposed legislation and regulations on labour disputes, in conformity with Convention No. 87, so as to ensure that the labour dispute settlement system has a solid legal basis that allows it to fairly reconcile the interests and needs of workers and employers involved in the disputes;

- develop a roadmap to define time-bound actions in order to implement the conclusions of this Committee.

The Committee recommended the Government to avail itself of ILO technical assistance and to report progress to the Committee of Experts before its November 2017 meeting.

Individual Case (CAS) - Discussion: 2016, Publication: 105th ILC session (2016)

The Government representative stated that Cambodia fully respected the right to strike but that violent actions during strikes were prohibited. He pointed out that the right to strike provided under the Convention was subject to domestic law. According to article 37 of the Constitution, “the right to strike and to non-violent demonstration shall be implemented in the framework of law”. While exercising their right to strike, workers should respect the right to strike procedure as provided for by the domestic laws. The exercise of the right to strike should not cause any harm to the public order of the country. He affirmed that no worker who had not committed criminal acts, such as destroying public or private property or causing bodily injury to others had been arrested. The number of registrations of newly established trade unions kept increasing every year. In 2015, the Ministry had registered 237 new enterprise-based trade unions. As of today, 16 union confederations; 100 union federations; 3,434 enterprise-level unions; and eight associations of employers had been registered. The Ministry of Education, Youth and Sports organized annual, quarterly and monthly meetings with teachers’ representatives. As of 2014, 121 non-governmental organizations (NGOs) and associations had signed the Memorandum of Understanding for collaboration with the Ministry. Teachers were not prohibited from joining a strike or demonstration so long as the exercise of this freedom complied with national procedures, such as the requirement for the provision of minimum services, which was in line with the principles of international labour standards. Teachers and civil servants were free to form associations of their own choosing under the Law on Association and Non-Governmental Organizations (LANGO) which aimed at ensuring the protection of the right and freedom of every citizen to form associations and NGOs for the protection of their legal interests and public interests. This freedom was also guaranteed under section 36 of the Law on Common Statute of Civil Servants and section 37 of the 2007 Law on Education.

Referring to the murders of the trade union leaders, the speaker indicated that the Special Inter-ministerial Committee established for the investigation of these cases was diligently working, with strong commitment to bringing the real perpetrators to justice. Considering the crucial nature of the case, it was necessary to allow adequate time for the investigation process in order to ensure a fair and just conclusion. He hoped that the Committee and all stakeholders would recognize the Government’s commitment in this regard.

The speaker regretted the incident that took place in early January 2014. However, he clarified that this incident was a riot, which had been instigated by some politicians who had used minimum wages as propaganda, and did not fall under the definition of a strike, as provided by international labour standards. The demonstrators had blocked public streets at midnight, thrown burning bottles of gasoline and destroyed private and public properties, with damages estimated at around US$75 million. The Government had had to take action to restore peace and stability. He stated that a detailed report on this matter would be submitted to the Committee of Experts by September 2016.

A specialized labour court, in accordance with the provisions of the 2014 Law on the Organization of Courts, was being developed and would be operational in the near future. The Government, with the technical assistance of the ILO, was working on the draft Law on Labour Procedure of the Labour Courts. The tripartite consultation on this draft would take place by the end of 2016. The new Trade Union Law was intended to protect the rights and interests of workers and employers, guaranteeing the right to collective bargaining between workers and employers, improving industrial relations, and ensuring employment and national development. The entire drafting process had taken almost ten years and a long series of bipartite, tripartite, multilateral and public consultations had been conducted during this period.

A review of the implementation of this new law was also included in the Government’s agenda to address any issues uncovered during its implementation. He expressed the Government’s commitment to ensuring freedom of association through the implementation of all legislation and requested strong collaboration of the social partners in this regard.

The Employer members noted that this case had been examined six times by the Committee, the last time in 2014; that the Committee of Experts had made observations in this regard every year since 2007; and that the case had also been examined by the Committee on Freedom of Association. This case identified the need to look at the manner in which the Committee received and processed information. Until recently, this case had focused on a list of issues as opposed to focusing on the observed breaches of the Convention and evidence of progress, or lack thereof, on the part of the Government. The report of the Committee of Experts had observed the divergent information provided by workers’ organizations and the Government regarding a number of issues and had recalled the necessity of a climate free from violence, pressure or threats to the exercise of freedom of association. These divergences made it difficult for the Committee to make concrete conclusions and, unless these divergences were reconciled with Cambodia’s obligations under the Convention, the Committee would simply continue to request more information, which should be avoided. The citation by the Committee of Experts of the conclusions of the Committee on Freedom of Association regarding the trials held following the murder of a trade unionist some time ago illustrated the need to focus on conformity with Conventions and accountability for their implementation. The Employer members, while emphasizing that they did not condone violence of any nature towards workers, unions or employers, wondered how the concerns of the Committee on Freedom of Association regarding the criminal process that applied to someone convicted of murdering a trade unionist were relevant to the consideration by the Committee of matters of freedom of association.

With regard to the freedom of association matters which had been the subject of earlier recommendations, they noted that the Committee had previously been informed that the Government had set up three committees to investigate a number of acts of violence during strike actions in 2014 over minimum wages, among other issues. The Employer members noted the Government’s indication that it would provide the conclusions of these committees, which were still unknown, by the end of 2016. They also noted that progress had been made in addressing the concerns on the fragmented and disaggregated resources of the judicial process, including the availability of trained adjudicators. The Government had been providing training to adjudicators and had set up specialized labour units within the various levels of the judiciary, which should provide the specialized focus and experience necessary for labour issues to be expeditiously and effectively resolved. However, this was a work in progress. The new Trade Union Law existed against a background of complaints about poor treatment and harassment of trade unionists, apparent restrictions placed upon the establishment of new unions and in the context of the significant increase of new trade unions in the country in recent years. Both of these issues clearly needed to be managed. They noted that the Trade Union Law dealt in large part with the issues over which concern had been expressed and called upon the Government to fully implement the Law as soon as possible, in addition to providing a copy to the Committee of Experts. Unless evidence of non-compliance with the Convention could be uncovered, in which case such issues could be submitted to the Government for response, they deemed that the Committee should consider this particular issue as resolved.

Concerned about the restrictions that the Government had sought to place upon the engagement of union officials, specifically the literacy requirement which seemed to constitute a form of prior authorization contrary to Article 2 of the Convention, the Employer members urged the Government to review this and any other potential anomalies before it sought to give full effect to the Law. Noting that the Committee of Experts had requested information on any progress regarding the drafting of the guidelines on the operation of the Labour Court and the Labour Chamber, they suggested that the Government provide a brief report to enable any potential inquiries into the implementation of its various facets. Considering the journey of Cambodia to democracy, the steps it had recently taken were very significant, namely the introduction of a specialized labour court and the Trade Union Law, and it was therefore possible to consider Cambodia as a case of progress despite it not being characterized as such. The ILO had recently held consultations in the country regarding labour courts and the related institutions and a process of consultation with the social partners had also begun. The Employer members considered that a reasonable time period should be given to Cambodia before it was asked to report in detail on the progress made with regard to the Committee’s recommendations, which did not preclude raising issues of breach of the principles of freedom of association. They recommended that the Government be requested to provide a brief update on: (i) its activities with regard to the three investigative committees, as promised by the Government for December 2016; (ii) the establishment, resourcing and training of the labour court, while taking note of the active work done and the assistance of the ILO in that regard; and (iii) the implementation of the new Trade Union Law, taking into account the Committee’s remarks in this regard.

The Worker members regretted that, despite repeated calls from the ILO, the Office of the United Nations High Commissioner for Human Rights, trade unions, leading clothing brands and civil society organizations, the Government had decided to adopt a thoroughly regressive law that violated the Convention in many respects. Like the LANGO, which was extremely restrictive and likely to be applied to trade unions in the informal sector that were not recognized under labour legislation, the new law reflected an increasing hostility towards trade unions and civil society. The numerous violations of freedom of association went unpunished. In May 2016, a joint statement of three United Nations Special Rapporteurs had stated: “We are … troubled by the actions taken by Cambodian authorities to deter and disperse peaceful demonstrations and arrest individuals protesting what they see as the Government’s mounting persecution of civil society and unjustified restrictions of fundamental freedoms in the country”. Major reforms were therefore necessary.

The Worker members recalled that the trade unions had been consulted only once during the lengthy drafting process of the Trade Union Law, and that their opinions had not been taken into consideration. He also recalled the criticism that had been raised that the Law would be used to suppress the country’s independent trade union movement, just as it was taking action to obtain pay raises and better working conditions. On frequent occasions, the ILO had drawn the Government’s attention to a number of concerns and shortcomings, and the United Nations Special Rapporteur for Cambodia had drawn attention to several provisions that actually violated Cambodia’s Constitution. The Worker members noted in particular: (i) section 3 of the Trade Union Law which excluded a number of categories of workers from its scope, including public servants, teachers, informal workers and domestic workers; (ii) section 14 which prohibited trade unions from concluding legal agreements before they were registered; (iii) section 17 which required trade unions to provide the Government with an excessive amount of information on their finances and activities, or face having their registration cancelled; (iv) section 20 which required trade unions to meet illegal criteria relating to age and literacy and subjected them to extensive criminal background checks that could disqualify persons who had participated in legitimate trade union activities; and (v) section 29 on requests for the dissolution of a trade union which did not specify who could make such a request. The penalties to which employers were liable under the Law were too lenient to be dissuasive. They called on the Government to rectify the situation in order to bring the Law in line with the Conventions of the ILO.

With regard to the violence used against demonstrators in January 2014, which had resulted in five deaths and dozens of people being seriously injured and being arrested without warrant, the Worker members deplored the fact that no sanction had been imposed and called for an independent and credible inquiry into the incidents. They supported the Committee of Experts’ request that the Government make public the findings and conclusions of the inquiry. Citing specific examples, they said that the criminalization of trade union activities dissuaded unions from freely organizing actions. As to the illegal resort to fixed-term contracts that was common practice in certain sectors, the Committee on Freedom of Association had recalled “that fixed-term contracts should not be used deliberately for anti-union purposes” and that “in certain circumstances, the employment of workers through repeated renewals of fixed-term contracts for several years can be an obstacle to the exercise of trade union rights”. Yet, that was precisely the kind of contract which was used in the clothing industry. Despite the Arbitration Council’s ruling that the law must be upheld, this was not the case and the Government had attempted to undermine the Council on several occasions.

The Worker members gave the example of a transport company’s violation of freedom of association which they believed clearly showed the gross absence of workers’ rights in Cambodia. Two union leaders had been arrested for organizing a peaceful demonstration calling for the recognition of a trade union and compliance with arbitration rulings. Criminal charges had even been brought against union leaders who had not been at the demonstration, while the management of the enterprise refused to implement the decisions of the Arbitration Council. That kind of behaviour needed to cease, and the Government was urged to put a stop to the repression and to respect freedom of association.

The Employer member of Cambodia stated that he was pleased that the Trade Union Law, which was in line with international labour standards, had been adopted after significant formal tripartite consultations. He considered that the procedure for the establishment of the specialized Labour Court, which was carried out with the support of the ILO and following tripartite consultations, would take significant time and requested that sufficient time be given to pursue these processes. The speaker highlighted the challenges which existed with the Cambodian union movement in enabling a healthy and respectful industrial relations environment, such as: (i) the existence of a fragmented union movement that was not representative that led to infighting and illegal behaviours among unions (this created great conflict within enterprises in particular because unions were representing personal agendas rather than workers); (ii) outside interference of unions in enterprises where they were not represented (outsourcing interference often resulted in intimidation and interference, disruption of the workplace, and the exploitation and threatening of workers); (iii) minority unions exploited the law for personal gain precisely because they were not representing the interests of workers; and (iv) the inability to use collective bargaining agreements effectively and to realize their benefits for workers, employers and industry. Referring to the comments made by the Committee of Experts in 2015, he stated that the unions also had the responsibility to ensure that freedom of association was exercised in a climate that was free from violence, pressure or threats of any kind. Unions should exercise their rights within the laws of the country and should be held accountable, if their actions were illegal. The minimum wage negotiations of 2014 had been turned into political demonstrations that ended in violence. Employers did not support violence of any kind, and those who had committed crimes needed to be held accountable, regardless of whether or not they were an employer or worker. The protection of freedom of association for civil servants and teachers was stipulated under section 36 of the Law on Common Statutes of Civil Servants and section 37 of the Law on Education. He hoped that the Government would continue to report to the Committee on progress made and urged it to do so through the inter-ministerial committee responsible for reporting on ILO matters.

The Worker member of Cambodia recalled that Cambodia had ratified 13 ILO Conventions and that Convention No. 87 had been ratified in 1999. Although many laws were in force, which ensured trade unions’ rights, law enforcement was still challenging. Independent trade unions still faced serious problems including murder, arrests, detention, union discrimination and interference in their activities. He recalled the murder in 2004 of Chea Vichea, Ros Sovanareth and Hy Vuthy, three trade union leaders. Since then, murders still occurred, as five workers had been killed in 2013. He also mentioned various cases in which trade union leaders had been injured, prosecuted, imprisoned or dismissed without reinstatement or compensation. Legal justice was rarely found in cases of discrimination of independent union leaders and members. The Law on the Organization of the Courts had been adopted in 2014 without consultation with unions. The drafting process of the Law on the Labour Procedure of the Labour Court was taking place. The Government was encouraged to start consultation with the unions with regard to this law. Regarding unfair dismissals of trade unionists, 80 per cent of workers were employed under fixed-term contracts which were used by the employers to easily terminate workers if they joined independent unions. Women workers were easily dismissed if pregnant. The speaker also recalled that in some cases, political parties and companies interfered with the activities of trade unions, and that these unions could therefore not be regarded as independent and autonomous, in violation of Article 3(2) of the Convention. Moreover, the Trade Union Act adopted in May 2016 was still very restrictive for trade unions: the quorum required for voting for a strike was 50 per cent plus one of the total members. Trade unions were also required to send financial reports to the Ministry of Labour. Also, the concerned parties had the right to audit trade unions’ finances and dissolve unions. The Government was urged to take the necessary measures to: (i) ensure that trade unions were free from the threat of murder, violence and interference; (ii) guarantee that fair, independent and transparent investigations of the previous murder cases were carried out, perpetrators were punished and victims compensated according to the law; (iii) ensure that charges filed against the leaders of the six national trade union centres were dropped; (iv) stop employers from using the judiciary against independent unions; (v) stop interfering in the activities of trade union organizations and protect trade unions from employers’ interference; (vi) work in collaboration with trade unions to amend the Trade Union Law in compliance with international labour standards; (vii) provide for a duration of fixed-term contracts of not less than two years to avoid discrimination against trade unionists and pregnant workers; and (viii) ensure that the new Labour Court would have a tripartite composition and would be independent, professional, efficient and ruled by consensus in deciding labour cases, and that access to it would be quick and free of charge. The ILO should assist the Government to address these issues through a tripartite mission.

The Government member of the Netherlands, speaking on behalf of the European Union (EU) and its Member States, as well as Albania, Iceland, the Republic of Moldova and Norway, indicated that they attached great importance to human rights, including freedom of association, and recognized the important role played by the ILO in developing, promoting and supervising international labour standards. The Government was urged to ensure that trade union rights be fully respected and trade unionists be able to engage in their activities in a climate free of intimidation or risk. In this regard, they hoped that the special investigative committee, established in June 2015 to resolve the criminal case regarding the murders of Chea Vichea, Ros Sovannareth and Hy Vuthy, would keep the national employers’ and workers’ organizations informed of the progress of its investigation on a regular basis. Noting the recent adoption of the Trade Union Law, they expected the Government to implement it in a fair and impartial manner, and called upon the ILO to assess and ensure that all of its provisions were in compliance with the Convention. Encouraging the inclusion of civil servants, teachers and domestic workers in the scope of the new law, they called upon the Government to: (i) provide the information requested by the Committee of Experts on the measures taken or envisaged to ensure that the rights of these groups were fully ensured under the Convention; (ii) avail itself of the technical assistance of the ILO; and (iii) comply with its reporting obligations.

The Government member of Thailand, speaking on behalf of the Association of Southeast Asian Nations (ASEAN), welcomed the information provided and the progress made by the Government. Expressing appreciation for the adoption of the Trade Union Law, he encouraged the Government to effectively implement it. He also commended the commitment and efforts of the Government to establish labour courts in the near future and to develop a minimum wage law, in compliance with international labour standards. Emphasizing the commitment of the Government to strengthen social dialogue in the country, he urged the Committee to take the significant progress made into account.

The Government member of the United States expressed concern about the persistent limitations on the right to freedom of association and the lack of protection for workers’ rights in Cambodia. She referred to the allegations included in the recent observations of the Committee of Experts regarding ongoing impediments to the registration of new independent trade unions, and the persistent intimidation of teachers from joining trade unions. Genuine freedom of association could only be exercised in an environment that was free from violence, pressure, and threats of any kind. While noting the information provided by the Government on the work of the three committees (the damages evaluation committee, the Veng Sreng road violence fact-finding committee, and the minimum wages for workers in apparel and footwear sector study committee) that were established in the wake of the serious episodes of violence, death and arrest of workers in 2014, she remained concerned by allegations of ongoing arrests and detention of workers engaged in demonstrations. She echoed the Committee of Experts’ request for additional information on the conclusions and recommendations of the three committees and urged the Government to take all necessary measures to prevent violence against trade unionists, including through full and expeditious investigations and the prosecution of perpetrators. Since 2008, the ILO had been engaged with the Government and its social partners in drafting a Trade Union Law. Despite numerous consultations and recommended revisions over the years, the Government had adopted the Trade Union Law, which appeared to fall short of compliance with international labour standards. The main concerns were: (i) the exclusion of certain categories of workers from the right to join unions; (ii) the high threshold requirements for strike ballots; (iii) excessive and burdensome audit requirements and unclear provisions regarding the relevant parties that may request an audit of union activities; (iv) the ability of courts to interfere in the dissolution of trade unions, which should instead be determined by the union’s statute and bylaws; and (v) the lack of sufficiently dissuasive penalties for non-compliance. She urged the Government to submit a copy of the Trade Union Law to the Committee of Experts for review in 2016, and to take immediate action with the technical assistance of the ILO and in full consultation with the social partners to address issues of non-compliance with the Convention.

The Worker member of Australia recalled that under article 36 of the Constitution, Khmer citizens had the right to form and join trade unions. Although that could be considered a decent starting point for a legally guaranteed right to freedom of association, the reality was that in recent years there had been a multifaceted, sustained and even deadly attack on the rights of workers to associate and organize. The uneven application of criminal law was an indicator of the deteriorating situation. There had been violent attacks and trade union leaders had even been murdered. However, perpetrators had gone unpunished in most cases. Nevertheless, criminal law had been invoked repeatedly and enthusiastically by the Government against workers and trade union leaders. No fewer than six leaders of the national trade union centres had been charged for intentional violence and with regard to damages after the 2014 strike. The President of the Cambodian Labour Congress was currently under court supervision, which restricted him from taking part in protests or approaching workers in designated areas, leading strikes and demonstrations or changing his home address. Up to 198 other criminal cases involving workers and unions mostly in the textile and clothing industry, were also pending. According to an analysis of the new Trade Union Law by the Office of the United Nations High Commissioner for Human Rights in Cambodia, there were a number of key areas where the application of criminal law held direct implications with regard to the ability of people to form and join trade unions. These included: (i) the mandatory requirement that trade union leaders declare that they had never been convicted for any criminal offence; and (ii) the capacity for the new Labour Court to dissolve entire trade unions where individual officers had been found to have committed an offence or even serious misconduct. Any political effort to criminalize unionization and to invoke criminal law as an instrument to repress union organization would only damage Cambodia’s international reputation and the Government was urged to reject that approach.

The Worker member of the Republic of Korea recalled that in its report adopted in March 2016, the Committee on Freedom of Association had indicated that fixed-term contracts should not be deliberately used for anti-union purposes and could be an obstacle to the exercise of trade union rights. Many garment factories had built an entire workforce by employing workers through repeatedly renewed fixed-duration contracts (FDCs) of short duration. While violating the Labour Law, this phenomenon was widely applied in practice and was increasing. The legal implications of employment under FDCs were numerous, including fewer rights and benefits for workers; easier dismissal and shorter notice periods; difficulties in proving anti-union retaliation; reduced compensation upon termination of contract; and limited access to maternity leave benefits. The use of FDCs created great instability for workers, who reasonably feared that their contracts would not be renewed if they failed to obey the employer or if they joined a trade union. Furthermore, in a situation where the majority of contracts were FDCs, it was difficult to identify trade union leaders, who would not be able to complete a two-year term. The one-year work experience required for trade union leaders by the labour legislation could be hard to accrue under FDCs. A Memorandum of Understanding in the garment industry had been signed in 2012 between the Garment Manufacturers’ Association in Cambodia (GMAC) and several trade unions, and included a commitment to reach a separate agreement on this issue. However, no negotiations had been initiated on this matter. Supporting the recommendations of the Committee on Freedom of Association, the speaker therefore urged the Government to take all appropriate measures to promote these negotiations with a view to reaching an agreement on the use of FDCs and ensuring that workers in the garment industry were able to exercise their trade union rights freely.

The Government member of Canada strongly encouraged all member States to respect the terms of the Convention and recalled that the onus to ensure that freedom of association be exercised in a climate that was free from violence, pressure or threats of any kind was on governments. While some positive steps had generally been taken, further action was required and information had to be provided, as highlighted by the Committee of Experts. The concerns on the Trade Union Law were mainly related to insufficient protection of the right of all workers and employers to freely set up organizations of their own choosing, and to the right of these organizations to decide on internal matters without interference. In this regard, the Government should reopen discussions through social dialogue and within the National Assembly with a view to revising the law. He also expressed disappointment regarding the LANGO, which was restrictive of civil society, as its application to occupations not covered by the Trade Union Law could constitute a violation of the Convention. Finally, looking forward to the conclusions and recommendations of the committees regarding the incidents of violence of 2014, he emphasized the urgent need to ensure the effectiveness of the judicial system as a safeguard against impunity, and as an effective means to protect workers’ rights during labour disputes.

The Worker member of the Philippines identified with the widespread anti-union discriminatory practices experienced by workers in Cambodia. Union and federation members and leaders who were independent and critical of employers were increasingly becoming the target of harassment, discrimination and unfair dismissals by their employers. Since the end of 2013, 867 worker members of the Cambodian Labour Confederation (CLC) had been dismissed due to their union membership and activities, and only 67 of them had been reinstated. The rejection by employers of the arbitration award on reinstatement, in addition to the lack of government will with regard to enforcement, was seriously undermining the unions freely chosen by workers. The speaker gave the example of the November 2014 strike at the Siem Reap Airport, a ten-day protest during which replacement workers had been hired and following which seven union leaders were terminated for organizing the strike. Airport management had asked the union’s deputy chair to stop addressing complaints against the company and had offered to reinstate him in exchange for his cooperation. Instead of rectifying the unfair dismissals, the Ministry of Labour requested the employer to give monetary compensation to the dismissed union leaders, who to this day had not been reinstated and were unemployed.

The Worker member of Japan expressed concern that section 29 of the Trade Union Law guaranteed the right to “concerned parties”, or 50 per cent of the total members of a union to take the initiative of filing for dissolution of the trade union to the Labour Court. In the interest of industrial relations, the dissolution of a trade union should only be taken as a last resort, and after exhausting other possibilities with less serious effects for the organization as a whole. Moreover, the dissolution of a trade union should be dealt with according to the provisions of the union’s constitution and bylaws. The provisions of the LANGO concerning the mandatory registration for all domestic and international associations, the unfettered discretion of the Ministry of Interior over union registration, and the requirement of “political neutrality” applicable to all associations and organizations, constituted violations to the right to freedom of association. He urged the Government to consult with the trade unions and to consider the revision of these laws in order to be fully consistent with the Convention.

The Government representative thanked his ASEAN colleagues, in particular Thailand, for their support and encouragement for better freedom of association in Cambodia. He noted all of the constructive comments made by the respective representatives of employers and workers, as well as other Government delegates, which could serve as valuable inputs to achieve their ambitious agenda in building a future with decent work. The Government had been working actively in developing a strong legal framework through the adoption of laws and regulations. The Trade Union Law had been recently adopted, its implementing tools were being developed, and the drafting process of the Law on Labour Procedure of the Labour Court was under way. The Government was working closely with Better Factories Cambodia and the ILO Better Work Programme, to improve and strengthen labour inspection in order to ensure better working conditions. For further improvement of the effective implementation of international labour standards, as well as national laws and regulations, the participation and collaboration of all parties concerned was a necessity. While reiterating the commitment of the Government to fully complying with its reporting obligations, he assured that a detailed report would be submitted to the Committee of Experts by September 2016.

The Worker members indicated that the members of the Committee could only encourage the Government to make rapid progress on the path towards freedom of association. However, they had heard from many delegates, and especially from the Worker member of Cambodia, a description of the situation which remained very serious. They recalled that, concerning the murders of Chea Vichea, Ros Sovannareth and Hy Vuthy, the Committee on Freedom of Association had had to resort to the exceptional use of paragraph 69 of its Procedures for the examination of complaints alleging violations of freedom of association in order to invite the Government to appear before it and to provide missing information. The Government had accepted the invitation to provide information in May 2015. Noting that more than a year had passed, they emphasized the importance of replying to the requests made by the Committee on Freedom of Association. Impunity remained a critical issue.

They recalled that Cambodia had been under the constant supervision of the Committee since 2006 for the application of this Convention, of the Worst Forms of Child Labour Convention, 1999 (No. 182), or for its failure to submit reports. Every year, the issues remained the same: unpunished acts of violence against trade unionists (including murder); anti-union dismissals; harassment and intimidation by state officials; prohibition of the right to free speech and assembly; and a legal framework which was not in compliance with the Convention. Fixed-duration contracts, the subject of the 2015 observation of the Committee of Experts and the 2016 conclusions of the Committee on Freedom of Association were routinely used to frustrate trade unions. These problems were compounded by a politicized judiciary that did not guarantee justice. They reiterated their concerns that, despite the intervention of the ILO, the UN, the Global Unions, and the global garment brands, the Government had missed yet another opportunity to pass a law compliant with the Convention and had instead adopted a law which contained numerous provisions which violated the Convention. Workers had been attacked and assaulted when they had peacefully protested following the adoption of the law.

Global brands had joined workers on repeated occasions to express concern regarding the negative environment in the country for workers. The country could and should immediately change its course and establish a legal environment enabling the full exercise of the right to freedom of association, which should also be ensured in practice. The Worker members called on the Government to: (i) bring the Trade Union Law into full conformity with the provisions of the Convention, in cooperation with the social partners and with the further technical assistance of the ILO; (ii) ensure that the rights under the Convention of teachers and civil servants, as well as workers in the informal economy who were not covered by the trade union legislation, were fully ensured; (iii) conduct full and expeditious investigations into the murders of the trade union leaders mentioned in the Committee of Experts’ report and prosecute not only the perpetrators but also the instigators of these crimes; (iv) ensure that the Special Inter-Ministerial Committee kept the national employers’ and workers’ organizations informed on a regular basis of the progress of its investigations, with a view to promoting social dialogue and putting an end to the impunity surrounding the acts of violence against trade unionists; (v) conduct an independent investigation into the episodes of violence perpetrated against trade unionists on 3–4 January 2014, including injuries and deaths, and prosecute both the perpetrators and the instigators of these crimes; (vi) ensure that workers were able to engage freely in peaceful public demonstrations; (vii) drop criminal charges against trade union leaders for their participation in peaceful demonstrations; and (viii) ensure the application of Arbitration Council decisions with respect to fixed-duration contracts, limiting the combined time employed under these contracts to two years. In light of the lack of progress since this Committee had last heard this case, and given the multiple times this case had been before the Committee in recent years, they urged the Government to accept a High-level Tripartite Mission in 2016.

The Employer members recalled the history of this case and the concerns raised by the Workers with regard to the lack of progress on some of the issues discussed and the changes initiated by the Government. On the other hand, the Government had provided information on the recent initiatives it had taken, including: (i) the introduction and ongoing implementation of the new structure for the labour courts and labour chambers, and its commitment to the development of these institutions; (ii) the introduction of training and resources in the labour courts and labour chambers; and (iii) the adoption of the Trade Union Law and its commitment toward effective implementation. They echoed the Workers’ call for the expedited completion and implementation of these initiatives, but considered that considerable progress had already been made and that Cambodia should be given latitude to prove it could bring these initiatives to a rapid and successful conclusion, namely the completion of the investigations of the three committees into the 2014 murders, due to be completed this year; the completion of the guidelines and the manner in which they would operate; and the effective implementation of the Trade Union Law through an approach which balanced workers’ and employers’ rights. They believed the country should be given leeway but urged the Government to provide a report to the Committee, as soon as possible, on the actions it had taken to fully implement the initiatives it had undertaken.

Conclusions

The Government representative indicated that, regarding the Committee’s proposal to accept a direct contacts mission, it was necessary to first consult the relevant government institutions. His Government would contact the ILO in due course.

Individual Case (CAS) - Discussion: 2014, Publication: 103rd ILC session (2014)

A Government representative emphasized that the Cambodian national Constitution and its labour law both provided for freedom of association. In addition, the Government was currently drafting a Trade Union Act. The Ministry of the Interior had issued guidelines for the registration of associations and non-governmental organizations (NGOs) and had to date registered 4,003 such organizations. The Ministry of Labour and Vocational Training (MLVT) had to date registered 12 union confederations, 80 union federations, 3,026 enterprise-level trade unions and seven employers’ associations. Associations and NGOs had participated in drafting the laws and regulations. The Government clearly respected the right of freedom of association. Concerning accusations by the international community that Cambodia was violating Convention No. 87, he provided updates on three important cases. First, Chhouk Bandith had been sentenced by the appeals court to 18 months in prison and required to pay 38 million Cambodian riels (KHR) in compensation to the three victims; the police were currently searching for him. Second, the two suspects accused of the murder of trade union leader Chea Vichea had been released and the case had been re-opened. Third, on Case No. 2655 of the Committee on Freedom of Association, the Vice-President of the Building and Woodworkers Trade Union of Cambodia (BWTUC) and three of its other leaders had met representatives of the MLVT twice in 2014. Due to the fact that the leaders of the BWTUC changed frequently, the Vice-President had requested more time to review the allegation. The Committee would be kept informed of progress on the cases. The Trade Union Act was being reviewed with the assistance of the ILO, and the MLVT was committed to adopting it by the end of 2014 or early 2015. The National Assembly was currently preparing an additional three laws on the establishment of the judicial organization, the organizing and functioning of the judges’ council and the status of judges and prosecutors. Lastly, the MLVT was planning to amend the national labour law, including its provisions relating to fixed-term contracts.

The Employer members recalled that this case had been considered by the Committee the previous year and that, in its conclusions, the Committee had noted the grave issues of impunity and flawed judicial processes and had requested the Government to take measures to remedy the lack of independence and effective functioning of the judiciary, to provide information on the proposed law on the status of judges and prosecutors and to intensify efforts to ensure the rapid adoption of the draft trade union law by the end of 2013. They observed that the Committee of Experts had noted with regret that no information had been received from the Government. Noting that elections had taken place in July 2013, the Employer members felt encouraged by the information provided by the Government that three draft laws were pending adoption by the National Assembly, namely the law on the organization of the courts (establishing labour courts), the law on the supreme council of judges and the law on the status of judges and prosecutors. They further understood that an inter-ministerial council including employers and workers had been established to facilitate reporting to the ILO and encouraged the ILO to provide, and the Government to continue to accept technical assistance relating to the establishment and working of the Council. The Employer members also understood that the Government was working together with the social partners on the draft trade union law to be reviewed by the ILO. They encouraged the Government to continue progress in that regard and to consult the social partners when preparing the draft legislation. There was a need to ensure that the legislation concerning trade unions was balanced in terms of the accountability of both the employer and the trade unions regarding unfair labour practices and in terms of a clear prohibition of violence. Certain national challenges should also be taken into account, such as a difficult economic environment, the multiplicity of trade unions in an enterprise and the occurrence of violence in trade union demonstrations. The Employer members also considered that the Committee should note the progress made by the Government in the promotion of freedom of association since the ratification of Convention No. 87. They encouraged the Government to report without further delay on the progress made to date and the measures that were being implemented, and to continue to request ILO technical assistance if it was considered helpful.

The Worker members expressed disappointment at the fact that the current case had been discussed four times in the past five years, and that the situation had steadily deteriorated year by year. There was hope, however. Global unions and some of the world’s largest apparel brands had jointly forged a roadmap that urged the Government to take action on various issues. Sustainable industrial relations would only be possible in Cambodia if they were founded on respect for the right to freedom of association and collective bargaining. On 2 and 3 January 2014, the Government had used overwhelming violence to quash spontaneous demonstrations by garment workers, which had erupted after the Government had announced a new minimum wage rate that was far below the rate that its own research had indicated was adequate to meet basic needs. Heavily armed soldiers and police had mobilized and had been responsible for six deaths to date, and approximately 40 hospitalizations for bullet wounds. Rather than heeding the calls of the United Nations Special Rapporteur on the situation of human rights in Cambodia to establish an independent committee to investigate the violence, the Government had set up a hand-picked committee, and had publicly praised its security forces for their efforts. The Government had not provided any compensation to the victims or their families. Twenty-three workers had been arrested for participating in the demonstrations. They had been unfairly tried and had been sentenced to four or five years in prison. However, due to intense international pressure, their sentences had been suspended. The Worker members were deeply concerned that the sentences, although suspended, would be used as threats, limit or prohibit the exercise of the right to associate.

Following the demonstrations of 2 and 3 January, the Government had repeatedly used force to break up rallies on labour issues and had imprisoned trade union leaders for their participation in such events. Without any legal basis, it had frozen the registration of new independent trade unions during the crisis, and had subsequently erected ad hoc requirements that hindered the registration of new unions. The Government had failed to respect the deadline set by the present Committee for the adoption of a new Trade Union Act in conformity with Convention No. 87. The current Bill marked a step backwards relative to the existing Labour Code. If it was not significantly changed, and if it did not incorporate the recommendations of the ILO and trade unions, it would be better to scrap it entirely, as it would only serve to further strangle the right to freedom of association for workers in Cambodia. The Government had failed to address a number of issues raised in the report of the Committee of Experts: it had still not conducted an independent investigation into the murders of union leaders Chea Vichea, Ros Sovannareth and Hy Vuthy; and no serious efforts had been made to apprehend Chhouk Bandith, convicted of shooting several garment workers in 2012. The judicial system remained deeply corrupt. In May 2014, the National Assembly, composed entirely of members of the Cambodian People’s Party (CPP), had swiftly passed three laws that would ostensibly bring national legislation into line with international standards on the administration of justice. However, the laws had been drafted secretly and rights groups had warned that, if approved by the Senate, they would reinforce the Government’s control over judges and prosecutors, seriously threatening the rule of law. Lastly, the cause of the current conflict in Cambodia was minimum wage setting, the subject of the 2014 General Survey. A study commissioned by the Cambodian Government in August 2013 had found that the appropriate minimum wage would be between US$157 and US$177 a month. However, the Government had then set the minimum wage at US$95, and later US$100 a month. International unions and garment brands had together called on the Government to immediately provide workers with a living wage, a right enshrined in the Cambodian Constitution and appropriate in an industry that generated US$5.5 billion annually.

The Employer member of Cambodia believed that certain Worker members had deliberately exceeded the remit of this case and called for such interventions to be removed from the record. With regard to the independence of the judiciary, progress had been made with the adoption of the three abovementioned laws which satisfied the requests of the Committee of Experts. She therefore requested that this issue no longer be considered by the Conference Committee and acknowledged that capacity building of the judiciary would take time. The Government should be encouraged to further strengthen the judicial system, including commercial and labour arbitration. In terms of freedom of association, she denounced the inaccuracy of the information supplied by the International Trade Union Confederation (ITUC). She reiterated that there had been an increase of 60 per cent in the number of trade unions in 2013, which brought their number to a total of 3,026 in 2013, of which 3,000 were in the garment sector (in 800 factories); an increase of 80 per cent in the number of federations (80) and an increase in the number of strikes by 255 per cent in 2012 and 21 per cent in 2013. These numbers illustrated that trade unions were not operating in a climate of fear and were granted many rights and freedoms in law and practice. The reality on the ground was characterized by a proliferation of unrepresentative minority and violent trade unions which hindered harmonious industrial relations, which were a precondition for harmonious growth. The national legislation failed to establish a minimum membership requirement for the establishment of a trade union. She raised the question of how employers were supposed to negotiate collectively with 17 mostly unrepresentative trade unions in one and the same factory. She believed that, rather than tabling accusations that did not reflect reality, the Committee should recognize and discuss the real practical challenges. The freedoms granted by national legislation were misused. The violence in January 2014 had started in the trade union movement with trade unionists destroying hospitals that were currently being rebuilt, damaging workplaces and disabling public officials. Violence was detrimental to the rule of law and sustainable enterprises, and should be condemned by all parties. Furthermore, the enforcement of law and order, including the requirement of an appropriate registration of trade unions, instead of their automatic registration, and of accountability for violence and non-compliance with the law should not be considered as infringements of freedom of association. It was essential for the new draft trade union law to address the needs of Cambodia, such as the need to attract investment and create jobs, as well as stability and peace. The law was currently in the drafting phase, being discussed and negotiated by the social partners, and it was inappropriate to examine specific provisions of a draft law in a direct request addressed to the Government. She called for the removal of the case of Cambodia from the list and for conclusions focusing on the issues at hand and which did not go beyond the remit outlined in the Committee of Experts’ observation.

The Government member of Greece, speaking on behalf of the European Union (EU) and its Member States, as well as the former Yugoslav Republic of Macedonia, Montenegro, Iceland, Serbia, Albania, Norway, Ukraine and Republic of Moldova, expressed commitment to promoting the universal ratification and implementation of the eight ILO core labour standards which were important international tools for ensuring democracy, the rule of law and respect for human rights. Their implementation supported the development of human potential and each country’s economic growth. In January 2014, the EU had voiced concern about the violent demonstrations in Cambodia and the excessive use of force to quell them, calling on all parties involved to use all possible means to find a peaceful solution. She welcomed the release on 30 May 2014 of the trade unionists and garment workers who had been charged in relation to the demonstrations, and hoped that it signalled a positive shift with regard to the situation of freedom of assembly in Phnom Penh, which had recently been deteriorating. The Government should accelerate the restoration of workers’ fundamental rights and should release the results of the investigation into the January killings. She called on all stakeholders to develop constructive dialogue on improving industrial relations. Regarding the issues raised in the Committee of Experts’ report, she urged the Government to provide the information requested on the outcomes of the investigations into the murders of trade union leaders. It should also ensure full respect for workers’ trade union rights and ensure that they were able to engage in their activities in a climate free from intimidation or risk. The Government should demonstrate how its planned legislative reform would promote the independence and effectiveness of the judicial system. It should intensify its efforts to adopt rapidly the Trade Union Act in full consultation with the social partners. Lastly, she called on the Government to avail itself of ILO technical assistance and to comply with its reporting obligations.

The Worker member of the Republic of Korea said that human and civil rights were easily infringed in the absence of freedom of association, as the bloody suppression of peaceful workers’ demonstrations in January 2014 had shown. On 2 January, in front of the headquarters of a Korean company, special forces had been deployed to suppress the protesting workers, ten of whom had been arrested by the military. Thirty-eight protesters had been seriously wounded, and some had been killed. In response to the violence, the Korean Confederation of Trade Unions (KCTU) and other Asian labour and civil organizations had sent a fact-finding mission to Cambodia. Interviews with workers who had participated in the protests or witnessed the arrests revealed that during the crackdown soldiers had been armed with rifles, slingshots, knives and iron pipes, although the workers were protesting peacefully. Soldiers had arrested ten protesters. Use of the military and the police against a country’s own citizens was never acceptable. The mobilization of the armed forces in response to the wage protests was manifestly excessive and had been condemned categorically by the United Nations. The Government should conduct a thorough and independent investigation into the bloody suppression of the protests and hold those responsible to account. It should also compensate the victims and their families. While the authorities had failed to arrest those responsible for the murder of workers, the Government had wasted no time in arresting and detaining 23 workers for five months without bail. Although they had been released on 30 May 2014, their convictions had incurred penalties, such as a prohibition on serving as union leaders. There had been no inquiry into whether the ten workers arrested had been involved in violence or the damage of property. Indeed, witnesses had stated that one of them, Vorn Pao, had been attempting to calm the situation by urging non-violence. The imprisonment without bail and subsequent convictions and suspended sentences were serious violations of civil rights and were politically motivated. They should therefore be quashed. Impunity for violence against trade union leaders prevailed in Cambodia, allowing the same crimes to be repeated. There needed to be justice, and the need for an independent judiciary was pressing.

The Worker member of the United States recalled that, despite the fact that the Government had long been called upon to adopt a new trade union law so as to comply with the Convention, the situation in the country was deteriorating dangerously. Although, after the circulation of the first draft law in 2011, the trade union movement had succeeded in removing certain restrictions on freedom of association from the proposed law, the enactment of the trade union law had stalled since the beginning of 2014. The Government had recently introduced a new draft which was much worse than the one developed in 2011 in consultation with the trade unions. The new draft had been criticised by the ILO for, inter alia, increasing the minimum number of workers required to register a union from 8 to 20 per cent of the workforce; giving the courts increased power to suspend or revoke union registrations for a wide range of infractions; using vague language in respect of penalties against trade unionists; requiring excessive qualifications for trade union leadership, including age and educational requirements and the absence of a criminal record; specifying the amounts of trade union dues; regulating details about strike ballots; limiting the term of elected trade union leaders, etc. In addition, the new draft only granted collective bargaining and representational rights to the union with the most representative status or the largest federation, thus restricting the rights of minority unions, in violation of Convention No. 98. The Government had failed to remedy the problem despite the concerns expressed by the ILO. Considering that a new trade union law complying with ILO principles was necessary for a sustainable labour relations regime, she strongly urged the Government to take into account the views expressed in detail by trade unions regarding the draft law, and to engage constructively with the ILO.

The Government member of Canada expressed great concern at the reports of violence, murder, torture and intimidation outlined in the 2013 observation of the Committee of Experts, as well as by reports in 2014 of excessive force being used in response to labour demonstrations in Cambodia, and particularly reports of related deaths of striking garment workers. He recalled that trade unionists must be able to engage in their activities in a climate free from intimidation or risk to their personal safety or that of their families, and that workers had the right to participate in peaceful protests to defend their occupational interests. He called for peaceful demonstrations to be allowed to be held safely and without fear of intimidation, detention or excessive use of force by the Cambodian authorities. Noting the observation of the Committee of Experts that there was a prevailing situation of impunity, he called for the investigation of the murders, deaths and other forms of violence against trade union leaders, the bringing forward of all information to impartial courts and the punishment of the guilty parties. He also called on the Government of Cambodia to undertake urgent efforts, in full consultation with the social partners and with ILO assistance, to ensure the rapid adoption of the Trade Union Act. Lastly, in the absence of replies and reports from the Government, he called on the Government of Cambodia to cooperate fully with the supervisory mechanisms of the ILO and with the social partners.

An observer representing the International Trade Union Confederation (ITUC) emphasized that the numerous trade union organizations existing in Cambodia were not treated on an equal footing. Those controlled by the Government, political parties or employers were given priority in terms of registration by the Ministry and recognition by employers, while independent unions were not registered for months or years, and were thus unable to function legally. After freezing union registration at the beginning of 2014, the Government had made it even more difficult for unions to become registered. The Labour Advisory Committee that set new labour policies was only composed of unions loyal to the Government. Almost the entire garment industry refused to engage in collective bargaining with independent trade unions. He added that independent unions faced continued anti-union discrimination and referred to cases examined by the Arbitration Council where, in spite of rulings favourable to the dismissed union leaders, employers never complied with the reinstatement orders. Finally, he expressed concern at the recurrent use of the judicial system to intimidate independent trade unionists when they stood up for workers’ rights.

The Government member of the Netherlands thanked the Committee of Experts for its excellent report and encouraged the Government to fully implement ILO Conventions and particularly Convention No. 87. Welcoming the agreement reached in establishing the list of 25 cases submitted for the Committee’s consideration, he stressed the importance of coherent and consensus-based conclusions and called on all parties to build on the progress achieved in the run-up to the Governing Body of November 2014. He emphasized once again his Government’s commitment to the ILO supervisory mechanism, the effectiveness and credibility of which were of core importance to the Organization. He looked forward to constructive progress, which would need to be accomplished on a tripartite basis at the next session of the Governing Body.

The Worker member of Indonesia quoted a 2013 report by ILO Better Factories Cambodia which indicated that 90 per cent of newly registered factories assessed classify all workers as fixed duration contract (FDC) workers, and that the use of FDCs could result in workers receiving fewer of their legal benefits. The decision by the garment industry to shift from unlimited duration contracts (UDCs) to FDCs had created substantial employment insecurity for many workers and consequently damaged industrial relations. It had had the intended effect of preventing the formation of new trade unions and undermining the power of existing ones. The shift had nothing to do with a drop in the number of full-time regular workers, but rather had been a decision by the garment industry as a whole to simply reclassify workers in order to intimidate them and prevent efforts to form independent unions. The system violated national labour law, yet was widely permitted in practice. Workers with FDCs had fewer rights than those with UDCs in terms of paid annual leave, seniority rights and maternity leave, for example. It was also much easier for them to be dismissed. The move to FDCs was undermining freedom of association and collective bargaining. Workers rightly feared that their contracts would not be renewed if they did not obey their employers, or if they joined a trade union. Despite a memorandum of understanding reached years ago between the Garment Manufacturers’ Association in Cambodia (GMAC) and several trade unions, which included a commitment to address the issue, negotiations had not been initiated.

The Government member of the United States recalled that for many years the ILO supervisory bodies had consistently asked the Government to bring to an end the prevailing situation of impunity regarding violence against trade union leaders, to ensure the trade union rights of workers and the independence and effectiveness of the judicial system and to adopt a Trade Union Act, following full consultation with the social partners, which fully guaranteed the rights enshrined in Convention No. 87. However, over the past year, the situation in Cambodia had worsened and labour conditions had deteriorated significantly. Wages in the garment sector had continued to decline, leading to labour unrest, a lack of government restraint in dealing with the unrest and a general breakdown in industrial relations in the country. Despite the release the previous week of a number of labour activists under suspended sentences, she remained concerned by the fact of their detention in the first place, as well as by the reported irregularities in their trials, their convictions and the continued threat of imprisonment. She urged the Government to convene an independent inquiry into the deaths, assaults and arrests of workers during the January protests. She also expressed concern at the obvious concerted efforts by some employers to take legal action against the leaders of independent trade unions and by possible Government interference in trade union activity. Genuine freedom of association could only be exercised in a climate that was free from violence, pressure and threats of any kind. She firmly urged the Government to adopt and implement a trade union law that was fully consistent with international standards and based on transparent and meaningful dialogue with all of the social partners, as well as with the ILO. It seemed that the Government was disregarding ILO recommendations with respect to its draft Trade Union Act and was moving in the wrong direction with respect to several critical provisions. She urged the Government to make the draft public and to engage in a consultative process with the social partners before submitting it to the Parliament. Finally, she encouraged the Government to intensify its cooperation with the ILO supervisory bodies and to avail itself of ILO technical assistance with a view to bringing the national law and practice in conformity with Convention No. 87. It would be critical for promoting industrial peace and addressing the root causes of the ongoing labour conflicts in Cambodia.

The Government representative indicated that he had taken note of all comments, which were constructive, made during the discussion. The Government would also take note of all recommendations made by the Committee on Freedom of Association. In close cooperation with all stakeholders concerned, and with ILO technical assistance, the Government would finalize the draft law on trade unions, which would guarantee the right to organize and freedom of association in compliance with the relevant international standards. Information on any progress made in those areas would be communicated to the Committee in a timely manner.

The Employer members appreciated the comments made by the Government, Worker and Employer members. The Government had taken measures to address the situation of the independence and effectiveness of the judicial system, including the adoption of draft laws by the national assembly: (1) laws on the organization of the courts; (2) the law on the supreme council; and (3) the law on the status of judges and prosecutors. That was an important first step. The Government had also established an inter-ministerial coordination council, which included the participation of the social partners, to deal with issues related to the Government’s reporting requirements under Convention No. 87. Those were two areas in which the Conference Committee had asked the Government in 2013 to take immediate measures. The Government should provide a full report to the Office concerning those measures and the progress made in that regard. In addition, tripartite negotiations were ongoing concerning a draft trade union law and, while concerns had been expressed concerning the law, it was important for the tripartite consultative process to be completed before the Committee commented on the appropriateness of the legislation. The Government should provide a report to the Office once the negotiations had been completed. The Government also needed to work with the social partners to ensure that violence and harassment, which the Employer members condemned, were eradicated. They also continued to urge the Government to avail itself of ILO technical assistance to fulfil its reporting obligations so that the Committee of Experts would have a clearer picture of progress, or the lack thereof. The Conference Committee’s conclusions should also recognize those areas of progress and highlight where further progress and action were required. The conclusions should also reflect the fact that the Committee did not address the right to strike in that case because the Employer members did not agree that there was a right to strike in Convention No. 87.

The Worker members indicated that it was clear from the previous and present discussions on that case that very serious issues remained unaddressed. Global unions and international brands were trying to address labour issues in the garment sector, which was the largest, but the denial of freedom of association and the right to bargain collectively was not unique to that sector, since most Cambodians worked in other sectors such as the agricultural products, sugar and rubber sectors. The ILO needed to play a much greater role in Cambodia to find solutions that would lead to sustainable jobs and a sustainable economy. While Cambodian workers wanted dialogue in good faith with the Government, they were met by deepening authoritarianism. The Worker members were very concerned about this. They called on the Government to: conduct independent investigations into the killing and wounding of protesters in January 2014 and the murder of trade unionists, and to prosecute the perpetrators; annul the sentences against the 25 persons issued on 30 May 2013; ensure that workers could register freely with trade unions without any prerequisites; ensure that workers who were dismissed for their lawful trade union activities were reinstated and compensated; guarantee freedom of assembly and expression; redraft the current trade union bill in consultation with independent trade unions and in the light of the comments of the ILO supervisory bodies; and consult civil society with respect to the proposed new legislation on the judicial system. They also called on the ILO to facilitate a discussion on fixed-term contracts and their impact in Cambodia on freedom of association, and to send a high-level tripartite mission as soon as possible in view of the seriousness of violations and the lack of progress in the situation. They finally requested that the conclusions of the Committee be placed in a special paragraph.

Individual Case (CAS) - Discussion: 2013, Publication: 102nd ILC session (2013)

A Government representative, referring to the case of Chea Vichea, Ну Vuthy and Ros Sovannareth (Committee on Freedom of Association, Case No. 2318), indicated that the Prime Minister had recently issued an order (letter No. 397 of 6 March 2013) to establish a Coordinating Committee with the exclusive mandate to coordinate the ministries involved to respond to the questions relating to Case No. 2318. In addition, the Prime Minister had issued a second order (letter No. 1080 of 6 June 2013) to establish a permanent committee which would include all social partners and 20 different ministries and which was mandated to develop the national employment policy and to respond to all questions raised by the ILO. The two orders would be translated and submitted to the Committee of Experts in due course. Concerning the freedom of association issues, his Government respected the principles underlying the Convention and the Cambodian labour legislation gave full effect to its provisions. Professional organizations of employers and workers could freely organize and exercise their rights. To date, there were 12 union chambers, 76 union federations and 2,765 trade unions at the enterprise level, mostly in the garment and shoe sector comprising around 460 enterprises. Moreover, workers’ organizations were playing a crucial role in drafting national legislation and were actively participating in discussions on labour issues. In its effort to address a variety of industrial relations challenges and strengthen social dialogue, the Government had established a tripartite committee to monitor strike actions, another tripartite committee on labour contracts and yet another tripartite committee on minimum wages. These three committees were composed of representatives of employers and workers who were freely elected by their respective organizations.

Moreover, the speaker recalled that a new draft Trade Union Law had been drawn up with the active involvement of social partners and technical assistance from the Office. The new draft legislation was now being considered by the Council of Lawyers of the Council of Ministers. Upon receiving the finalized draft, the Ministry of Labour and Vocational Training would forward it to the Committee of Experts. Furthermore, the Ministry of Justice was instructed to draft the labour court law in consultation with all social partners, as per established practice. In relation with the independence of the judiciary and the Government’s reporting obligations regarding recently developed laws, such as the Anti-Corruption Law, the speaker indicated that one of the newly established committees referred to above would take responsibility for responding to the Committee of Experts’ requests, probably after the general elections of July 2013 and as soon as it had been familiarized with the ILO procedures, in particular the work of the supervisory bodies, and he requested the Office to provide assistance and training in this regard. In addition, the Government had appointed a labour attaché to Cambodia’s diplomatic mission in Geneva who would facilitate communication and dialogue between the Office and concerned bodies in Cambodia. Finally, the Government representative stated that significant progress had been made over the years but as the labour market changed and industrial relations diversified, there was need to continue to respond to the needs of employers and workers through appropriate legislation and social dialogue.

The Worker members recalled that, in its 2007 and 2011 conclusions, the Committee had already referred to the murder of trade unionists, to harassment, to the arrest and disappearance of union leaders, to the inefficiency and lack of independence of the justice system and to the climate of impunity. The Committee of Experts had used the very same words in its comments to the Government ever since 2003. In its latest observation, it noted that the murder of trade unionists Chea Vichea, Ros Sovannareth and Hy Vuthy, had still not been elucidated and once again raised the question of the efficient and independent functioning of the system of justice and of the climate of impunity. Although the Government had been requested to take concrete measures and, specifically, to adopt the draft laws on the status of judges and attorneys and on the functioning of tribunals without delay and to send copies to the Committee, there had been no progress at all. As to the harassment encountered by the members of the Cambodian Independent Teachers Association (CITA), that was a reflection of the more general problem that civil service unions were not covered by the draft Trade Union Law and were treated as ordinary associations. Moreover, as in many countries, the use of temporary contracts and proliferation of short-term contracts in Cambodia directly or indirectly undermined the possibility for workers to join trade unions. All workers without distinction had to be allowed to join the trade union of their choice. The Worker members stressed that the problems referred to were particularly serious in the textile sector, which was an essential part of the Cambodian economy as it accounted for 80 per cent of the country’s exports. Although it employed skilled manpower, the workers’ conditions of pay and employment were bad and workers were under tremendous pressure. The enterprises that imposed the conditions under which they worked were subcontractors to world-famous trade names that were not bothered by such practices. Yet, there was an obvious link between decent working conditions and freedom of association in an enterprise. The climate of violence and corruption that prevailed rendered the trade unions’ task difficult and it was the workers who suffered. A free trade union movement that was not exposed to violence, pressure and threats was essential if the social partners were to conduct an effective dialogue and thus guarantee conditions of employment that were in line with ILO standards. The detention of trade unionists for reasons connected with their activities in defence of the interests of workers constituted a serious interference with civil liberties in general and with trade union rights in particular. The major economic interests of the textile sector would be much better protected if freedom of association was guaranteed.

The Employer members noted that this case constituted a challenge for the Committee because, despite seven observations addressed by the Committee of Experts since 2007, a direct contacts mission in 2008, a double footnote in 2010 and a Conference discussion in 2011, little progress had been made. A law on peaceful demonstrations had been adopted in 2009 but appeared to be at variance with the provisions of the Convention. Issues such as a climate of impunity, a context of violence directed at union leaders and lack of independence of the judiciary remained unresolved. Workers continued to denounce acts of violence and harassment, labour courts still did not exist, and the United Nations (UN) Special Rapporteur on the situation of human rights in Cambodia had recommended that measures should be taken to enhance the independence of the judiciary. The Employer members welcomed the Government’s indication that it had adopted anti-corruption legislation and put in place an anti-corruption unit, and requested it to provide information on the composition and mandate of that unit, together with a copy of the law, to enable the Committee of Experts to better understand the new measures. In addition, the Employer members urged the Government to provide in its next report information on any progress made with regard to the creation of labour courts. They also urged the Government to take steps to provide for an independent and efficient judicial system as a matter of urgency, and adopt without delay the proposed law on the status of judges and prosecutors and the law on the organization and functioning of the courts. The Employer members regretted that the Government was silent with respect to observations about violations of trade union rights, including allegations of serious acts of violence and harassment of trade union members, and requested the Government to provide its views on this matter. They also urged the Government to intensify its efforts, in full consultation with the social partners and with ILO assistance, to ensure that the final draft legislation on freedom of association and trade unions would be in full conformity with the Convention. The Employer members insisted that the Government had to move forward and build on the measures it had taken in order to ensure progress both in law and in practice.

The Worker member of Cambodia referred, first, to the use of short-term or fixed-duration contracts (FDCs), and stated that almost 60 per cent of employers used subcontractors and short-term contracts to avoid the establishment of trade unions in their enterprises, thereby undermining the workers’ rights to freedom of association and collective bargaining. Moreover, short-term contract workers often enjoyed less favourable working conditions, such as lower wages and limited social security benefits. With respect to the assassination of union leaders, the speaker recalled that the actual perpetrators of the murder of Chea Vichea, Ros Sovanareth and Hy Vuthy in 2004 had still not been identified. In another incident, Governor Chhouk Bandith, who shot and seriously injured three striking women workers in February 2012, had not been prosecuted due to the reluctance of the judicial authorities to properly investigate the case. Effective measures were therefore needed to investigate the murders, prosecute the perpetrators to the fullest extent of the law and ensure that justice was done. The speaker referred also to the violence and threats against union leaders and activists, as it happened regularly that persons were hired to attack leaders and members of independent unions. In 2013, there was such a criminal attack on leaders of the Coalition of Cambodian Apparel Workers’ Democratic Union (CCAWDU). In a related development, the number of dismissed union leaders had increased from 40 in 2010 to 45 in 2011 and 116 in 2012. Another matter of concern was the registration of trade unions as all unions wishing to register with the Ministry of Labour had to first give notice to the company while the Ministry of Labour often delayed the provision of the registration certificate, thus preventing the union from functioning properly. On the other hand, political parties and employers occasionally sought to establish unions that could not be regarded as independent, and thereby violating Article 3 of the Convention. As regards the draft Trade Union Law, improvements were necessary as the draft legislation did not cover workers from the public sector (civil servants, teachers, police, air and maritime transportation workers, judges) and domestic workers. The speaker also raised the issue of poor occupational safety and health standards, including insufficient ventilation and unsafe working conditions often resulting in tragic accidents and loss of life.

The Employer member of Cambodia stated that the freedom of association and right to organize was extremely well practised in Cambodia and refuted the reference in the Committee of Experts’ report to a “persistent climate of violence and intimidation towards union members” as being entirely false. Freedom of association was enshrined in article 36 of the Constitution and sections 266–278 of Chapter 11 of the Labour Law. Furthermore, the Labour Law did not require a minimum number of members for one union to be established, therefore one enterprise might have more than one union, sometimes as many as ten unions. Recalling the Committee’s discussion in 2011, she noted that despite the challenging economic environment, progress continued and multiple priorities were being addressed from labour law review to dealing with the increasing number of strikes, establishing commercial arbitration centres, extending social security programmes, diversifying economic strategy, focusing on employment policy and promoting the operation of the new anti-corruption unit. In the speaker’s view, trade unions were not only free but flourishing in Cambodia with 2,765 unions and 76 trade union federations registered in 2012, or a 60 and 90 per cent increase respectively compared to 2011 figures. With regard to strike statistics in the garment sector, the speaker indicated that, in 2012, strikes increased by 255 per cent compared to 2011, while in the period from January to March 2013, there was a 25 per cent increase in strikes compared to the same period in 2012. From an employer’s point of view, the real challenge was the multiplicity of unions and the violent character of demonstrations, signs of a young industrial relations environment and a young union movement that needed maturity, consolidation and more cohesiveness. In relation to the Government’s reporting obligations, the speaker welcomed the establishment of the new inter-ministerial working group bringing together relevant ministries involved in reporting, which would greatly assist in collecting and transmitting information in a timely manner. ILO assistance with building the capacity of the abovementioned group would help the bodies represented in that group to better discharge their responsibilities. With respect to the allegations concerning FDCs, the speaker expressed the view that issues around employment contracts were being taken out of context to push a freedom of association agenda. Both employers and unions agreed that it was necessary to look at the changing economic environment and the challenges of FDCs without blowing this question out of proportion and creating a bad profile for Cambodia’s investment environment. Concerning the forthcoming adoption of the draft Trade Union Law, the speaker stated that the new legislation was initiated and drafted through a truly tripartite process and therefore was not a matter of serious violation of the Convention to be deliberated in this Committee. Using the draft Trade Union Law as a tool for suggesting that there was no freedom of association in Cambodia risked undermining this genuinely tripartite and ground-breaking legislative development. With respect to the deaths of union members, she recognized the seriousness of the matter but hoped that due process would be followed in investigating and delivering justice. Recognizing the challenges that lay ahead, the speaker expressed the hope that the ILO would continue to support the social partners in Cambodia in their endeavours for further strengthening industrial relations systems and mechanisms.

An observer representing Education International (EI) agreed with the Committee of Experts’ previous comments that the draft Trade Union Law did not comply with Convention No. 87 or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). Recalling this Committee’s conclusion in 2011 that the Government should intensify its efforts, in full consultation with the social partners and with the assistance of the ILO, the speaker regretted that the final draft Trade Union Law was moving nowhere fast. Although the draft law, which was communicated in 2011, had addressed some of the Committee of Experts’ observations, it was unclear how it might have been modified since then. A critical issue remained the continued exclusion of civil servants, including teachers, from the scope of the draft union law. The Government had again refused to register the Cambodian Confederation of Unions (CCU) as a union confederation because most of their members were teachers, and this illustrated the Government’s failure to abide by the Convention. Unions in the public sector were still denied union rights and had to operate under the Law on Associations and Non-Governmental Organizations, which was also problematic. ILO technical assistance had been provided, yet the Government did not have the will to move forward. The speaker called upon the Government to again take up the draft Trade Union Law, ensure that it complied with international labour standards, including coverage of civil servants, and adopt it immediately.

The Worker member of Indonesia referred to the dramatic rise in the use of FDCs, particularly in the garment industry, which had created substantial employment insecurity, damaged industrial relations, contributed to the increase in plant-level strikes since 2005, and undermined the power of existing trade unions. In most cases, the duration of FDCs was less than three months, and workers feared that their contracts might not be renewed if they participated in union activities or became union members. The Government’s strategy to compete in global markets by using FDC workers and excessive types of precarious work would only result in economic and political vulnerability. Many garment factories were now entirely composed of a workforce with repeatedly renewed short-term FDCs, which, according to the speaker, violated labour law, in particular section 67 of the Labour Law, 1997, limiting the maximum period for an individual labour contract to two years. The Arbitration Council had ruled that this provision imposed a two-year cap on FDC renewals, but the garment manufacturers ignored the ruling. In practice, the shift from undetermined-duration contracts (UDCs) to FDCs undermined freedom of association and collective bargaining. Short-term contracts also provided insufficient time to organize a union or to identify and develop trade union leaders, and this had a serious impact on the efficacy of leadership and the ability of the union to effect change in the workplace. Further, the labour law required union leaders to have one year’s work experience in the factory, which was hard to accrue under FDCs. Many garment factories had converted most, if not all, of their UDCs to FDCs through a variety of tactics including fake factory shutdowns whereby the factory would reopen immediately under a different name and would “rehire” the workforce under FDCs.

The Worker member of Sweden, speaking on behalf of the Worker members of other Nordic trade unions, stated that anti-union discrimination in Cambodia continued to be a serious problem and workers who were fired for their union activity rarely had access to effective remedies. To date, the Arbitration Council remained the only mechanism for the resolution of labour disputes in the absence of a labour court. The Council addressed disputes in a transparent and balanced manner but its decisions were not binding while its continued existence was compromised due to limited funding. There were many examples where employers engaged in anti-union discrimination and simply disregarded the Council’s decisions with impunity. Hence, the Cambodian unions and workers needed an effective remedy against anti-union discrimination. For all its merit, the Arbitration Council was routinely ignored, leaving workers to have to suffer lengthy and expensive legal proceedings or to take to the streets with the hope of defending their rights.

The Worker member of the Philippines stated that freedom of association could only be effectively exercised in a climate free from violence, pressure or threats of any kind against trade union members and leaders, which was not the case in Cambodia. The speaker gave a detailed account of two cases that highlighted the conditions of intimidation, harassment and violence that workers were facing in Cambodia. In the first case, on 20 February 2012, Governor Chhouk Bandith shot and seriously wounded a group of striking workers. He was charged in April 2012 with “unintentional injury” despite overwhelming evidence from over two dozen witness testimonies clearly pointing to an intentional act. The case had been reopened but the victims, unions and human rights organizations were deeply sceptical about the prospects for a fair investigation. The second case involved two individuals, Born Samnang and Sok Sam Oeun, who were convicted in 2005 for the murder of trade union leader Chea Vichea, then president of Cambodia’s Free Trade Union (FTU). Despite concerns about lack of due process and lack of evidence and an order for a retrial by the Supreme Court, the Appeals Court had upheld the original verdict. The Cambodian authorities needed to initiate a thorough, independent and impartial investigation into those cases. Since Chea Vichea’s death, another two FTU activists had been murdered in Phnom Penh, adding to the long series of unjustifiable acts against civil liberties and trade union rights.

The Government representative expressed gratitude for the comments made by the Employer and Worker members reflecting the efforts made by the Government in the implementation of the provisions of Cambodian legislation in line with the Convention. In order to encourage freedom of association, the Government provided all workers with the opportunity to freely organize and exercise their rights. To date, there were 12 union chambers, 76 union federations and 2,765 trade unions at the enterprise level in Cambodia. In 2012 alone, 74 collective bargaining agreements had been registered with the Ministry of Labour and Vocational Training. He further indicated that trade unions had played a crucial role in the drafting of national legislation and in various discussions on labour issues. Trade union representatives had been included in a committee established on 6 June 2013, which was entrusted with the mandate of conducting the coordination and drafting of Cambodia’s Employment Policy and responding to questions raised by the ILO. The Government representative expressed regret about some of the comments made, which did not reflect the real situation in Cambodia and did not recognize the efforts undertaken to pursue the effective implementation of the provisions of Cambodian labour law in compliance with the Convention. He stressed that the Government had continued to respond to the needs of employers and workers and to the changing industrial environment. Lastly, despite having made significant progress over the years, the Government was aware of the need to continue to develop national laws and regulations and to build on an already solid foundation of social dialogue.

The Worker members stated that, in order to redress the deficiencies that had been highlighted in terms of freedom of association and protection of trade union rights, the Government should, without delay: (i) adopt, before the end of 2013, a law on trade unions that was in accordance with the Convention and that covered all private and public sector workers, regardless of their contract type (permanent, temporary, part-time or full-time), in consultation with the representative organizations of workers and employers and with technical assistance from the ILO; (ii) ensure that the perpetrators of acts of violence against trade unionists and workers were prosecuted and punished by the courts promptly and transparently; (iii) convene a tripartite committee to reach agreement on temporary contracts within six months; and (iv) ensure ongoing funding for the Arbitration Council and authorize it to take binding decisions.

The Employer members expressed their wish to see the comments they had made at the opening of this case with regard to the deficiencies in government action, reflected in the Committee’s conclusions. They believed that the case could be summarized in four broad areas that required the Government’s immediate action: the silence of the Government in respect of the situation of freedom of association; the independence and effectiveness of the judicial system; the adoption of the Anti-Corruption Law together with its five-year strategic plan as well as the establishment of an anti-corruption unit; and the engagement of the social partners. The Employer members encouraged the Government to adopt a law dealing with the issue of freedom of association of trade unions and to ensure that violence against workers was not permitted. They urged the Government to guarantee the independence and effectiveness of the judicial system, including by focusing on capacity-building measures and the institution of safeguards against corruption. In that regard, the Employer members also urged the Government to adopt without delay the proposed law on the status of judges and prosecutors and the law on the organization and functioning of the courts; and to take measures in order to ensure their full implementation. They requested the Government to provide information on the progress made in this respect and in particular with regard to any measures taken to establish labour courts. Furthermore, they encouraged the Government to provide information on the mandate of the anti-corruption institution and its activities together with a copy of the law, the strategic plan and any other relevant document. The Employer members indicated that they were encouraged by some of the measures taken, for example the Government’s consultation of the social partners with respect to the draft Trade Union Law; however, they noted that it was important that the Government continue to engage the social partners in its efforts to achieve compliance both in law and practice with the Convention. The Employer members expressed the hope that they would be able to note progress in each of the aforementioned four categories.

Individual Case (CAS) - Discussion: 2011, Publication: 100th ILC session (2011)

A Government representative stated that the Government, in phase two of the “Rectangular Strategy” for Growth, Employment, Equity and Efficiency, had defined “Private Sector Development and Employment” as a strategic driving force for job creation, the improvement of working conditions and economic growth. The union movement had grown exponentially in tandem with the growth of the garment, hotel and tourism industry. The Government was strongly committed to address the objective of efficiency and protection of rights and the freedom and dignity of the people within the context of the Strategy. Legal and judicial reform formed a core component of the Strategy, which included the strengthening of the judicial capacity relating to fundamental labour rights, including freedom of association and collective bargaining, as well as training on industrial relations. With regard to the investigation of the three cases relating to the murders of former trade union leaders, the Government stated that no updated information existed since the release on bail of the two suspects by the Supreme Court. The Government would provide the ILO with information in the event of any new developments. In the context of the immature industrial relations in the country and the growth of the garment industry, the number of trade unions and labour disputes, the Government with the assistance of the ILO, had established the Council of Arbitration through which labour disputes were resolved peacefully. As a result, the number of strikes had been halved during the last three years. The Government was also actively preparing a draft Union Law, which was expected to guarantee the right of workers to organize and bargain collectively. The draft law would also promote collective bargaining through harmonizing the rules for certifying unions with the most representative status and minority unions, creating a legal framework for collective bargaining agreements and specifying unfair labour practices of both employers and workers. The speaker hoped that the Committee would continue to cooperate with the Government to further improve industrial relations and the application of freedom of association through institutional capacity building.

The Worker members emphasized that there was a general climate of anti-trade union activity in Cambodia. It included anti-trade union harassment, intimidation and dismissals of trade unionists as well as discriminatory measures against free trade unions. The report of the Committee of Experts also referred to police violence, cases of assault and murders of trade unionists. The report mentioned the names of trade unionists for whose murder the perpetrators had never been punished. The Committee of Experts had requested precise information from the Government and that had not been sent so far. In general, steps had to be taken to ensure the independence and effectiveness of the judicial system. That point had been taken up, not only by the Committee of Experts, but also by the United Nations (UN) Special Rapporteur on the situation of human rights in Cambodia. Furthermore, the Government had announced the forthcoming vote on a labour court law and a trade union law, the latter having been sent to the ILO and in connection with which the Government was receiving technical assistance from the Office. With regard to the labour court, Cambodia had an Arbitration Council which derived from the labour legislation. The Worker members, while not denying the usefulness of such a body, observed nevertheless that it could not replace a genuine judicial body. Moreover, they had noted that the employers, particularly in cases of anti-union discrimination, often decided not to implement arbitration awards. With regard to the draft trade union law, it was essential that it was discussed with all the social partners. But according to the information in the workers’ possession, such dialogue was occurring only between the Government and the private sector employers, the workers only having observer status. It also appeared that the law presented a number of problems of conformity with the Convention. For that reason, it was necessary to consult the trade unions before continuing with the draft law.

The Employer members expressed their disappointment about the statement by the Government, which had shown that no significant action had been taken and which had provided no new information. They felt that they could have the same discussion as last year. They indicated that this was the fifth time this serious case was discussed, which involved the violation of civil liberties, assassinations of trade unionists, death threats, a climate of impunity, repression and lack of trade union law. It was a double-footnoted case last year. After the observations of the Committee of Experts in 2007 and 2008 and the direct contact mission in 2008, the Law on Peaceful Demonstration had been adopted in 2009, but this law was in breach of the Convention, which had to be rectified. They regretted that there had been little progress made in the field of freedom of association and the right to organize. The International Trade Union Confederation (ITUC) had reported on acts of violence and harassment against trade unionists. The Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC) continued to struggle to be recognized by the Government as a valid social partner. Investigations on the murder of trade union leaders were insufficient. Functional labour courts were not yet established. The UN Special Rapporteur on the human rights situation in Cambodia had recommended that measures be taken to enhance the independence and effectiveness of the judiciary. In summary, this case was “dead in the water” and progress could not be seriously discussed. They emphasized, therefore, that technical assistance had to be provided to the Government.

The Employer member of Cambodia expressed the view that progress achieved since the ratification of the Convention in 1999 was remarkable in many ways. Based on the register of the Ministry of Labour and Vocational Training, 1,725 unions, 41 federations of trade unions, seven confederations of trade unions covering all industries and a National Union Alliance of Cambodia had been registered in 2010. Some 80 to 90 per cent of trade unions belonged to the garment industry, which meant that approximately 1,380 to 1,553 unions existed in an industry with approximately 300 factories. This indicated that workers were free to organize. In addition, the Labour Law allowed multiple unions in one enterprise. Many workers belonged to multiple unions at an enterprise. Employers thus faced practical problems with these unions, including the problem of double counting of members, and competition and fighting among unions. The employers had to negotiate with several of these unions at a time. It was widely acknowledged by all social partners that the union movement was disorganized and fragmented. She indicated that the employers sought to cooperate with a most representative union and encouraged better structures and representativeness of unions, in order to ensure constructive and meaningful dialogue. She hoped that this would become a reality with the adoption of the draft Trade Union Law. She mentioned that article 36, paragraphs 5 and 6, of the Constitution guaranteed the citizens the right to form and join unions, and that sections 266 to 278 of the Labour Law provided for freedom of association. She further mentioned several tripartite mechanisms that existed in the country. She referred to the eight public–private tripartite working groups, which had not been mentioned previously by the supervisory mechanism. The eighth working group dealt with labour and social affairs and had prepared the draft Trade Union Law. She also mentioned that the social partners were represented in the governing structures of the ILO Better Work programmes, the Labour Arbitration Council, the National Social Security Fund and the Employer Youth Employment Programme. She reiterated that the principle of freedom of association was practiced in Cambodia. She regretted the murders of trade union leaders.

The Worker member of Indonesia deplored the continuing anti-union discrimination practices in Cambodia. In 2010, as a direct result of trade union activities, over 1,000 workers had been dismissed from their jobs, 35 workers had been injured and 11 had been arrested. Workers were threatened by employers or black listed as a result of union activities. In September 2010, 817 workers had been suspended or dismissed, 10 workers had been arrested and 28 workers had been injured for taking part in a national strike in which hundreds of thousands of workers had asked for an increase in minimum wage. Paho Sak, the president of FTUWKC, had also been violently attacked. The speaker was concerned with the arrest and detention of Sous Chanta, a trade union leader of the United Apparel Garment Factory, as the arrest seemed to have been fabricated to punish him for his trade union activities. These were just some examples of anti-union violence and intimidation that had taken place since the Committee had last considered this case. In order to prevent workers from exercising their right to organize, employers made recourse to numerous tactics, including the increasing use of short term contracts, subcontracting, outsourcing and yellow unions. The speaker called upon the Government to ensure that workers could freely associate, workers’ rights were respected and perpetrators of anti-union violence were held accountable.

The Worker member of Finland expressed deep concern over the continuing failure of the Government to bring its law and practice in compliance with the Convention. Notwithstanding the repeated calls by the ILO supervisory bodies, the Government after seven years had still not exonerated those wrongly convicted for the murders of the trade union leaders and had not ensured impartial investigations to bring the real perpetrators to justice. A culture of impunity continued to prevail and those who instigated violence against trade unionists had little to fear from the authorities. Employers often appealed against the decisions of the Arbitration Council to the courts or simply ignored them. Workers who sought the enforcement of their rights were forced to take legal action in civil or criminal courts, which was costly and lengthy. The judicial system in the country was corrupt, and lacked capacity and impartiality. It was critical for the Government to take action in this area and she, therefore, urged the Government to adopt and fully implement its proposed Law on the Status of Judges and Prosecutors and the Law on the Organisation and Functioning of the Courts. While underlining the seriousness of the case, the speaker deplored the lack of commitment of the Government and urged it to take concrete steps to ensure genuine freedom of association for Cambodian workers.

An observer representing Education International said that there was no teachers’ union in Cambodia, as no public employee enjoyed freedom of association in the country. The Labour Law of 1997 did not authorize them to establish a union or to have access to collective bargaining procedures. Indeed, public officials were governed by a law of 1994 which provided that all aspects governing the industrial relations of public officials were to be determined by law, without negotiation. In that respect, the Committee on Freedom of Association had emphasized the incompatibility of the Common Statute of Civil Servants with the Convention and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). Despite the recommendations made by the Committee on Freedom of Association in 2004, no amendment had been made. She indicated that the Cambodian Independent Teachers Association (CITA) and its members were the victims of discrimination and harassment. In 2009, the CITA had submitted a new complaint relating to intimidatory measures by members of the authorities and the police forces. High-level government officials had used their position to bring pressure to bear on teachers to dissuade them from joining the CITA or to leave the association. As they were appointed by the Government, the directors of educational establishments and authorities were effectively obliged to show allegiance to the regime. In 2010, CITA had submitted to the Ministry 34 individual cases of teachers who had suffered discrimination because of their trade union activities. The cases related to prejudice in relation to promotion, wage cuts, transfers or dismissals. Only 14 of the cases had been resolved. She concluded that, despite the reiterated calls made to the Government of Cambodia to amend the Common Statute of Civil Servants so as to guarantee in full the right to organize and to collective bargaining of public officials, the workers feared that the current legislative amendments were not going in the right direction, as emphasized by other Worker members.

The Worker member of the United States indicated that while the Government had engaged in consultations with trade unions regarding the adoption of a new Trade Union Law, he was deeply concerned about the quality of those consultations and their outcome. The current draft law reflected few of the recommendations made by the trade unions, but largely reflected the priorities of garment sector employers. This draft law had to be substantially amended prior to its eventual adoption, otherwise, it would only perpetuate the current dysfunction. Amongst other things, this draft law continued the previous law’s exclusion of civil servants, police, air and maritime workers, judges and domestic workers; it imposed qualifications for trade union leadership which were inconsistent with the principles of freedom of association; it allowed the administrative authorities to suspend or cancel a trade union’s registration; and it gave sole bargaining rights to a union that represented far less than the majority of workers in the workplace. He urged the Government to take into account the views of the trade unions on all these issues.

The Government representative clarified that the cases concerning the former trade union leaders were not yet finalized, as all necessary information was still being collected. He assured that justice would be served soon. He reiterated the willingness of the Government to improve freedom of association and collective bargaining and pledged that the situation would improve with the promulgation of the draft Trade Union Law. False information had been used by the ITUC, since the alleged black list referred to did not exist. The Government would take into account the comments and recommendations made during the discussion of the case.

The Employer members argued that there was a serious problem of understanding within the Committee as to the standing of the case, which was illustrated by the significant disconnect between the statements made by the Government and the employer member of Cambodia. The ILO had to assist the Government to provide the Committee of Experts with a comprehensive report of the situation in law and practice, which also had to include a copy of the draft trade union law. This would enable the Committee of Experts to clearly delineate the legal situation as regards the right to freedom of association and collective bargaining and to make observations on the draft law. The Employer members insisted that the case had to move forward and, for this purpose, ground work had to be done by the Government in cooperation with the ILO in order for the Conference Committee to engage in a real dialogue with the Government next year.

The Worker members emphasized that they could not understand why the Government had not acted or taken little action to resolve situations involving serious violations of freedom of association in Cambodia. The Government needed to take all the necessary measures as soon as possible to bring to an end violations of the rights of workers engaged in a trade union organization. With respect to the judicial authority, they observed that the Government still had much more to do, especially in terms of the legislative amendments to guarantee the independence of the judiciary. The draft Trade Union Law was not in conformity with the Convention. Any modification of Cambodian legislation needed to be made in consultation with the trade unions. In conclusion, they called on the Government to request ILO technical assistance.

Individual Case (CAS) - Discussion: 2010, Publication: 99th ILC session (2010)

A Government representative stated that the matters raised were considered as key in the ongoing process of development, in which the implementation of the “Rectangular Strategy” for Growth, Employment, Equity and Efficiency played an important role. Since 1996 the trade union movement had grown in tandem with the growth of the garment, hotel and tourism industry. The Government had made great efforts to address the issues raised by the supervisory bodies relating to respect for freedom of association and collective bargaining, in line with the policies and objectives of the Rectangular Strategy. The Government strongly believed in the establishment of a legal and institutional basis for development towards the promotion of individual rights and dignity, private ownership and free market mechanisms. Based on this vision, the Government had enacted numerous laws and made efforts to enhance the legal and judicial system, as well as good governance. The legal and judicial reform formed a core part of the Rectangular Strategy. The Government was aware of the need to enhance the capacity of the judiciary to ensure and protect fundamental labour rights, including the right to organize and bargain collectively, as well as the need to provide training on industrial relations. To this end, his Government welcomed the ILO’s technical assistance.

With regard to the investigation of the three cases concerning trade union leaders, some progress had been made. In the case of Chea Vichea, the two persons who had been convicted earlier had been released on bail after the Supreme Court found inadequacies in the criminal procedure, particularly as regards the evidence. In the case of Ros Sovannareth, the appeal against the conviction of Thach Saveth by the Appeal Court in April 2009 was still pending before the Supreme Court. The case of Hy Vuthy was still being investigated. The Government was making efforts to address these cases in line with its policy of ensuring accountability through the overall reform of the legal system. In addition, many other cases were still in the process of being investigated and the Government also suspected that at least some of the cases (for example, Case No. 2318 of the Committee on Freedom of Association) had been brought as a result of anti-union rivalry and ordinary crime.

The efforts of the Government had to be considered in the context of the growing development of the garment industry, the considerable growth of trade unions, as well as the immature state of industrial relations and labour disputes. The Arbitration Council, which had been established with the assistance of the ILO, had settled labour disputes peacefully and, due to its existence, the number of strikes had been reduced by about half over the past three years. In cooperation with the ILO, the Government was working on a draft Trade Union Law to be adopted by Parliament in 2011. The Government expected the Law to guarantee the right of workers and employers to organize and bargain collectively through the streamlining of rules for the certification of the union with the most representative status and the minority union, the creation of a legal framework for collective bargaining agreements and the definition of unfair labour practices by employers and workers. In view of the evolving progress, the Government was considering the creation of a labour court in accordance with international standards.

In the context of the public administration reform policy, and as part of the Rectangular Strategy, the Government was considering guaranteeing the right of freedom of association and collective bargaining to public personnel. Public servants had already benefited from an increase in their monthly salary and the Government was committed to continuing efforts to increase the base salary. In conclusion, he emphasized the cooperation of his Government to enhance the living standards of workers and hoped that the ILO would continue to provide technical assistance to strengthen capacity building in Cambodia, particularly in the field of freedom of association and industrial relations.

The Employer members noted that this was a “double-footnoted” case concerning one of the fundamental Conventions. They observed that the Government had provided information on various points, but that it was only partially related to the points raised in the comments of the Committee of Experts. This was the second occasion on which the case had been discussed since 2007 and the Committee of Experts had still not been provided with sufficient information. They recalled that the main issues in this case concerned the assassination of trade unionists, death threats, the climate of impunity, the allegation of irregularities in trials, corruption, and systematic violence and repression. However, the Government had not specifically commented on these points. They referred to the conclusions of the direct contacts mission that had visited Cambodia in April 2008, mentioned in the 2009 observation of the Committee of Experts, which had reported the lack of capacity and independence of the judiciary, the procedural irregularities in the trial for the murder of trade unionists, and the absence of Government action for review of the outstanding cases.

In the 2009 direct request, the Committee of Experts had, in relation to Article 2 of the Convention, called on the Government to take appropriate measures to ensure that judges and temporarily and permanently appointed officials in the public service enjoyed the right to establish and join organizations. They were of the opinion that the Government needed to provide a comprehensive report on these points, as it had not addressed them in its statement to the Conference Committee. With respect to the right of workers to establish organizations without previous authorization, the Committee of Experts had requested the Government to indicate whether workers’ and employers’ organizations could be refused registration and the permissible grounds for such refusal. This was a normal part of the supervisory process. Regarding Article 3 of the Convention, the Committee of Experts had requested the amendment of section 269(3) of the Labour Law, which disqualified persons convicted of any crime from holding office in trade unions, and section 269(4) of the Law, which required that trade union members had to be engaged in the profession for at least one year before being elected to trade union office. They called on the Government to respond to these comments, as it had not yet done so. With respect to the right to strike, they indicated that the Government should address the issue in light of its national circumstances. Concerning the issue of affiliation with international organizations, they recalled that the Government had indicated that there were no legal obstacles for unions of professional organizations to affiliate with international organizations. If the practice was in place, it was in effect the policy.

Finally, they were of the view that this was a serious case because the Government was not fulfilling its constitutional obligations to report to the ILO and to respond to the requests of the Committee of Experts. The Government was also failing to discharge the international obligation that it had taken on voluntarily to implement the Convention in law and practice. This needed to be remedied as an urgent matter.

The Worker members stressed that the non-respect for Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), was aggravated by the continuous lack of the submission of reports by the Government. In the case of Convention No. 87, they recalled that the observations concerned the assassination of trade union leaders in 2004 and the legal consequences of these murders, namely the conviction of two innocent men. More generally, they referred to a climate of violence and intimidation towards union members, including death threats, suppression of the right to strike, anti-trade union discrimination, false accusations and pay docking. The Independent Workers Union of the Kingdom of Cambodia was the systematic target of repression. All of those acts remained unpunished, primarily because of lapses in the Cambodian legislation. There was, in fact, no means for resolving conflicts because the tribunals provided for by law had not yet been established, and intimidation and corruption replaced any legal means of conflict resolution. In addition, recognition of the most representative trade unions could be refused by the Ministry of Labour for arbitrary reasons. The right to collective bargaining was not recognized for judges, teachers and civil servants. Furthermore, the Cambodian Independent Teachers’ Association (CITA) was not recognized as a trade union. The Worker members recalled that the Government had accepted a direct contacts mission in April 2008. At the end of 2008, the Supreme Court had ordered the release of two persons accused of the murder of a trade union leader. The Government had done nothing to ensure respect for trade union rights, guarantee the independence of the legal system, establish labour tribunals or revise the law on trade unions. The Worker members noted the announcement by the Government of a new draft law on trade unions, and they expressed their strong hope that the new law would be in full compliance with the principles contained in Conventions Nos 87 and 98.

The Worker member of Cambodia referred, first, to the murder of the three trade union leaders, Chea Vichea, Ros Sovannareth and Hy Vuthy, for which the murderers had not yet been found. He called on the ILO to urge the Government to take decisive action to investigate the three cases as soon as possible and to ensure that the murderers were found and brought to justice. He also called upon the Government to stop threats, and violence against and killings of trade union leaders and activists. Second, he indicated that since the global financial crisis of 2007, there had been numerous cases of violence against trade unionists and of dismissals of trade union leaders. He claimed that many employers, approximately 60 per cent, used subcontractors and short-term contracts to avoid unions in their company, thereby destroying freedom of association. Under short-term contracts, the rights of the staff were curtailed, especially the freedom to join a union and the right to maternity leave, years of service and annual leave. He added that employers had dismissed 230 union leaders since early 2009 and threatened that if they continued their union activities, they would dismiss workers or take them to court for incitement of violence, which was a criminal offence in Cambodia. He referred to numerous cases of dismissed union activists, including 58 workers of the Naga company, 169 workers in 14 garment factories and three union leaders in the TTP Company, and emphasized that union leaders always lost their cases in Cambodian courts. He called on the ILO to appeal to the Government to respect and apply the legislation and ILO Conventions, to ensure that employers complied with them, stopped dismissals, violence and threats, and reinstated all workers involved in trade union activities. Finally, he indicated that trade unions did not have equal rights to participate in the Eighth Working Group, a body for social dialogue. He called for full rights to be given to trade unions in this body so that the Eighth Working Group was truly tripartite.

The Employer member of Cambodia stated that freedom of association was strongly promoted by the Government of Cambodia. The Cambodian employers welcomed the right to freedom of association and collective bargaining. A high number of trade unions existed in Cambodia, mostly in the garment industry. Cambodian labour law allowed for multi-enterprise unions, which caused many practical problems for employers. Most garment factories had at least three or more unions and many workers belonged to more than one union at one enterprise. As a result, various demands came from various unions, operations were often disrupted and many strikes took place, which were illegal because the legal procedures had not been followed. He regretted that in Cambodia strikes were often used as a first, instead of a last, resort for dispute settlement. The Cambodian employers welcomed a trade union movement, but one which was consolidated and genuine. The ILO Better Factories Cambodia was an example of a programme in which trade union rights were fully respected. In response to the allegation made by the Worker member of Cambodia that there was no mechanism for the settlement of disputes, he recalled that the Arbitration Council which dealt with freedom of association had already been in existence for five years. The revision of the Trade Union Law was currently being studied by employers and workers and was expected to be passed by Parliament in 2011. With regard to the murder of trade union leaders, he expressed his regret at the loss of human lives, but asserted that employers were not involved, and hoped that justice would be done.

The Worker member of the Philippines expressed his concern over the restrictions on trade unionists in Cambodia. While the 1997 Labour Code provided that workers were free to form and join trade unions, the law, in practice, did not apply to officials working at the local and national levels, judges and teachers, contrary to Conventions Nos 87 and 98. In particular, he emphasized the crucial role of teachers, whose working conditions remained unsatisfactory, with their monthly salaries ranging from US$20 to 40, making it difficult to fulfil their tasks of educating children and young persons who would shape the future of the country. The fact that 10 per cent of Cambodian teachers were organized under the CITA showed that there was an urgent need and a wish to improve their working conditions. The CITA, however, was not recognized as a trade union. Therefore, the Government had to explain the measures taken to remove continued obstruction of the activities of the CITA, as well as of the Cambodian Independent Civil Service Association (CICSA). The Committee on Freedom of Association (CFA) in its 334th Report had already requested the Government to amend the Common Statutes of Civil Servants so as to guarantee the right to collective bargaining of civil servants not engaged in the administration of the State. He therefore requested the Government to use the current process of drafting a trade union law to include relevant provisions ensuring this right.

The Worker member of France emphasized that the Cambodian Government had much to explain. He recalled the latest developments in the three murder cases, which had intimidated the trade union movement in Cambodia and silenced its legitimate leaders. First, there had been no serious investigation to find the murderers of Chea Vichea. The charges against Born Samnang and Sok San Oeun, who had been wrongfully imprisoned for five years, were still pending and no new developments had occurred since the Court of Appeal had sent a list of specific points for the investigation of Chea Vichea’s murder to the Phnom Penh Municipal Court in the autumn of 2009. Second, on 21 February 2009, the Court of Appeal had upheld the 15 year prison sentence of Thach Saveth for the murder of trade union leader Ros Sovannareth in a trial that had been marked by procedural irregularities, which had cast doubt on the conviction. An appeal to the Supreme Court had been lodged, but there was no news as to its status. Third, no investigation had been made into the killing of Hy Vuthy, a union leader of the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC), in 2007. Evidence had disappeared and witnesses had been intimidated. An impartial investigation into these three murders needed to be carried out and the Government should be requested to report on this to the ILO next year. Thach Saveth should be released and the charges against Born Samnang and Sok San Oeun dropped. He urged the Government to finally give an undertaking to the victims and their families that justice would be done and to work towards the establishment of a climate free from fear for genuine trade unionists.

The Worker member of the United States shared the concerns expressed by the previous speakers with regard to the culture of impunity in Cambodia which enabled the intimidation and violent repression of trade unionists to continue. The absence of an effective system to prosecute and convict the intellectual and material authors of such violence and repression needed to be addressed. Cambodian workers were also subject to blacklisting, illegal wage deductions and exclusions from promotion due to their trade union activity. The Labour Ministry rarely took legal action against violators, instead advising workers to go to court, which was costly and ineffective, or to accept a cash settlement. Given their low pay, labour inspectors were especially vulnerable to bribery. The Committee of Experts had called on the Government to solve this judicial and administrative corruption, which had hampered the establishment of truly effective labour courts, employment generation, job security and decent work in general. Efforts to eliminate impunity were therefore not only essential for the protection of trade union rights, but also for the creation of an atmosphere of stability and certainty for employers and foreign investors. At this critical moment, it was important for Cambodia to save its reputation as a source country that was improving its compliance with international labour standards by means of the contributions already made under the ILO’s Better Work Programme. He urged the Government to use ILO technical assistance to ensure that the new law on trade unions was in full compliance with Conventions Nos 87 and 98. In this respect, the new law should overhaul article 269 of the Labour Code, and enable trade unions to freely elect representatives of their own choosing and freely administer their own system of internal governance. The new law should also prohibit the establishment of yellow and employer controlled organizations, such as the Khmer Youth Federation Trade Union, and should guarantee full legal trade union status and collective bargaining for teachers and civil servants.

The Government representative of Cambodia thanked the Employer and Worker members for their contributions to the debate. Despite the challenges his Government was facing, he reiterated that the Government was committed to promoting the rights and dignity of all people, including workers. This objective was also incorporated in the Rectangular Strategy referred to earlier. Impunity was not the policy of the Government and the legal and judicial system was undergoing reform. He regretted the death of the trade union leaders and reiterated the Government’s commitment to bringing those responsible to justice. The reality was that the Government was not only currently engaged in a reform process, but was also dealing with the effects of the economic crisis. Moreover, the international community should acknowledge the progress made by the Government so far.

The Employer members, while appreciating the additional information provided by the Government, indicated that it remained unclear whether its report submitted to the Office contained replies to the requests made by the Committee of Experts and whether the legislation under consideration would fill the gaps identified. In any case, the Committee of Experts would provide its observations on this report at its next session. He suggested that it might be useful for the Government to provide the draft legislation to the Office for its technical advice so that the legislation adopted would fully meet the requirements of Convention No. 87. He indicated that the adoption of a right policy was only the first step and its implementation in practice had to follow.

The Worker members had noted the Government’s intention to give priority to the competitiveness of the Cambodian economy, even at the cost of disregarding the ILO’s fundamental standards. The Worker members insisted therefore on the Government’s obligation to comply with those standards. They called on the Government once and for all to complete the legal proceeding surrounding the killing of trade unionists and, specifically, to release Thach Saveth and drop all charges against Born Samnang and Sok Sam Oeun, and to take all necessary steps to apply Conventions Nos 87 and 98. They requested, specifically, that the Government guarantee judges, teachers and public officials the right to form and join trade unions and to bargain collectively and that, with the technical assistance of the ILO, it finalize the drafting of the new laws on trade unions and labour courts. They appealed to the Government to ensure that there was genuine social dialogue and, above all, that trade unions participated on an equal footing in meetings of the Eighth Working Group on Industrial Relations, where important labour issues were discussed.

Individual Case (CAS) - Discussion: 2007, Publication: 96th ILC session (2007)

A Government representative stated that freedom of association was assured under sections 266-278 of Chapter 11 of the Cambodian Labour Law, which were themselves in conformity with the provisions of Convention No. 87. As of 2007 there were 1,075 trade unions, freely established and registered in accordance with national laws. Union members exercised their rights freely, and no threats or harassment against trade unionists had ever occurred. The reports of the ILO Better Factories and Labour Dispute Resolution projects indicated that the situation with respect to freedom of association rights had improved dramatically in the garment sector; as a result, many labour disputes were settled in a timely manner and to the satisfaction of the parties concerned.

He stated that on 6 April 2007 the Court of Appeal held a hearing on the murder of Chea Vichea, the former president of the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC), and on 12 April 2007 rendered a verdict upholding the municipal court's August 2005 sentence of 20 years' imprisonment for the defendants, Born Samnang and Sok Sam Oeun. The case had passed through the judicial process, and was therefore beyond the Government's competence. As regards the case concerning Ros Sovannareth, that case was presently under investigation by the competent authority.

He maintained that the Government had emphasized the effective and efficient management of civil servants under the competence of the Education and Interior Ministries, especially with regard to their financial and technical aspects, and that civil service workers' associations fell within the scope of the Labour Law. The above information, he concluded, demonstrated the Government's commitment to upholding the principles of Convention No. 87.

The Employer members regretted that the Government had provided no report on the implementation of Convention No. 87, in spite of the fact that the Committee of Experts had been requesting such information since 2003. This failure to report gave the impression that no effort had been made to implement the Convention's provisions. This amounted to a failure to apply the Convention in law and in practice. Judges and civil servants must be able to establish organizations to defend their interests and to become members. The Experts had also requested an amendment of the provision of the Labour Law, according to which everybody who had been convicted of a crime was barred from being elected to a responsible position in a professional association. The Employer members further remarked that it remained unclear which civil servants were defined as "officials with legislative tasks" and barred from establishing organizations, as well as under which conditions the establishment of an organization of workers or employers could be denied. Additionally, limitations existed on the right of associations of professional organizations to affiliate with international organizations.

Noting the reported problems of applying the Convention in practice, they affirmed that the right of workers' and employers' organizations can only be exercised in a climate free from violence, pressure or threats of any kind against the leaders and members of these organizations. They stated that the examples touched upon infringed not only upon the Convention, but also upon the Constitution of Cambodia, which expressly provided for freedom of association. They concluded by urging the Government to provide full information on the Convention's implementation, as requested by the Committee of Experts for several years running.

The Worker members regretted that the Government had not submitted a report and deemed the statement by the Government representative to be disappointing. It was vital that, at a time when this country was experiencing strong economic growth, particularly thanks to the garment sector, all workers, including those in that sector, should enjoy freedom of association. This, unfortunately, was not the case. The Labour Law did not apply to civil servants or domestic workers. The Cambodian Independent Teachers' Association (CITA) had not been recognized as an independent trade union. It could not bargain collectively on behalf of teachers and was the target of harassment, intimidation and surveillance by local authorities and police. This lack of protection also existed in the informal sector.

Where they were able to organize, workers were confronted with a climate of intimidation and violence. Three years ago, the Chairperson and another member of the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC) were murdered. Two innocent people had been condemned for this crime, while a witness to it, found by the International Trade Union Confederation (ITUC), was afraid of testifying. This year another trade unionist was murdered. There was no lack of proof for acts of harassment and repression systematically carried out by the police against collective action led by the unions, especially the FTUWKC. It was the Government's duty to ensure a climate free of violence, threats or pressure so that employers' and workers' organizations could exercise their rights.

Furthermore, there was no system for conflict resolution, as courts foreseen by the Labour Law to settle litigation between workers and employers had still not been set up. Workers who complained or protested were sometimes brought before civil courts on charges of damages to companies. In most cases, the complaints were withdrawn if the worker resigned or accepted to forego his or her action. Intimidation and corruption had replaced legal procedures in conflict resolution.

There was still a long way to go in order to put an end to the climate of impunity and ensure the essential conditions for the exercise of freedom of association.

The Worker member of France underscored the serious aspect of the International Trade Union Confederation's comments and added his own. In November 2004, the trade union organization to which the speaker belonged, after having met Rong Chlun, the Chairperson of the Cambodian Independent Teachers' Association, communicated its concern to His Majesty the King of Cambodia regarding the mounting pressure and threats to which trade union leaders and members were subjected because of their union activities. Two other union activists - Chea Vichea and Ros Sovannareth - were assassinated in the same year. The facts pointed to violent police action against striking workers through the use of water cannons, aggression, etc. In addition, the imposition of minimum service in all the enterprises mentioned in the direct request of the Committee of Experts further limited the right to strike. These proved well founded as, in October 2005, Rong Chlun and another trade unionist were arrested for criticizing government policy. An arrest warrant was also issued against Chea Mony, Chairperson of the FTUWKC. The speaker could testify to the tense situation for workers exercising their union rights, mainly in the textile and garment sector, which was experiencing the full impact of trade liberalization policies. This tense situation had led to the murder of a trade union official in the Suntex clothing company, Hy Vuthy. The impunity of the guilty parties put further pressure on trade union members and workers. In this respect, the international community had mobilized to demand the reopening of the trial which resulted in two innocent people being condemned for the assassination of the FTUWKC members.

Finally, he said it was deplorable that, despite the seriousness of the situation regarding freedom of association in Cambodia, the Government had not submitted reports due under Conventions Nos 87 and 98.

The Worker member of the United Kingdom asserted that although freedom of association was said to exist in Cambodia, in reality its exercise was severely restricted. Although workers were able to form unions - indeed, a multiplicity of unions existed - serious problems arose when unions attempted to bargain collectively. Workers were also subject to repression in the form of dismissals, intimidation, violence and even murder.

He stated that workers who attempted to engage in collective negotiations were routinely fired. Moreover, dismissals were easily resorted to, due to an extremely high incidence of contract labour in Cambodia: 60-70 per cent of workers were employed on short-term contracts, rendering true freedom of association all but impossible. He offered, by way of example, the case of the River Rich Trade Union, 30 members of which were dismissed in December 2006 after joining the union and having tried to negotiate a collective agreement. As they were on short-term contracts and had received dismissal compensation, the Arbitration Council denied their reinstatement. Fierce protests by factory workers followed these unfair dismissals. The company, for its part, failed to honour the compromise reached in February 2007, refused to reinstate the trade unionists in their jobs, bribed 20 dismissed workers into withdrawing their complaints, and continued with an anti-union campaign that included threats made against the union.

He added that the police had also been involved in the company's anti-union campaign, using tear gas to disperse a press conference organised by the Coalition of Cambodian Apparel Workers Democratic Union (CAWDU), a trade union federation of which the River Rich Trade Union is a branch, and attempting to arrest CAWDU's General Secretary and other union activists. Three unionists - Phin Sophea, Check Bunsan and Pom Chimma - were now facing criminal charges for having taken part in this legitimate protest.

He maintained that the repression of trade unionists took many forms, including the blacklisting and bringing of criminal charges against union members. In the case of the Fortune Garments Trade Union, he stated that the company brought charges against the union leader for inciting workers to strike, and sued the union's executive committee for US$50,000 - the equivalent of more than nine years' wages per committee member. The repression of trade union leaders could also turn deadly, as testified to by the assassinations of the trade union leaders Hy Vuthy, Chea Vichea and Ros Sovannareth.

He remarked that the power of the Arbitration Council was severely limited and the functioning of the Labour Department severely inadequate. In spite of the efforts of some international buyers and the ILO Better Factories project, violence persisted, illustrating the weakness of the rule of law and the general climate of violence and intimidation, directed particularly at the FTUWKC, which was identified as the most representative independent trade union in the garment sector by a joint World Bank and ILO Better Factories project report.

He concluded by stressing the need for an objective investigation, conducted by an ILO expert mission, and called upon the Government to take urgent measures to ensure the full respect for workers to exercise their rights without fear of dismissal, blacklisting, violence and even murder.

The Government representative thanked the Employer and Worker members for their contributions to the debate. He maintained, however, that some of the comments made had no basis in fact.

The Worker members emphasized that the Cambodian workers did not enjoy freedom of association in law or in practice. The Government should take action to ensure that the labour laws applied to civil servants and domestic workers; it should recognize the CITA and other independent unions; it should recognize and respect the right to strike; it should establish labour courts; and, particularly, it should bring an end to the climate of intimidation and impunity. The Worker members therefore called for a direct contacts mission.

The Employer members joined the Worker members' appeal to the Government to transpose the requirements of the Convention into law and practice. Recalling that freedom of association was the basis for social dialogue, they called upon the Government to provide a full picture of the freedom of association situation in Cambodia in its next report. Finally, they seconded the Worker members' request for an ILO direct contacts mission to the country.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC), dated 24 August 2010.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. In its previous comments, the Committee requested the Government to take the necessary measures so as to ensure that judges and temporarily and permanently appointed officials in the public service enjoy the right to establish and join organizations. The Committee notes that the Government indicates in its report that judges as well as other categories of public employees are not covered by the Labour Code, but have their own statutes and associations. Noting that a Law on the Status of Judges and Prosecutors is being prepared, the Committee requests the Government to take into account that judges should enjoy the right to establish and join organizations of their own choosing for the promotion and defence of their occupational interests, and to provide information in this respect in its next report.

Furthermore, in its previous comments, the Committee noted that “civil servants of the legislative order” were employees of the secretariats of the National Assembly and Senate, and were thereby excluded from the provisions of the Common Statute of Civil Servants. The Committee notes that both the Committee on Freedom of Association (Case No. 2222) and the ITUC refer to civil servants’ associations that are registered, but that are not recognized as unions by the Labour Ministry, in particular teachers’ associations. Furthermore the Committee notes that the Government indicated during the discussions in the Conference Committee on the Application of Standards in June 2010 that it was considering guaranteeing the right of freedom of association to civil servants. The Committee recalls that with the exception of the members of the police and the armed forces, the guarantee of the right of association should apply to all workers, including public servants and officials. All public servants and officials should have the right to establish occupational organizations, irrespective of whether they are engaged in the state administration, are officials of bodies which provide important public services or are employed in state-owned economic undertakings (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 48, 49 and 55). Moreover, all workers, whether they are employed on a permanent or temporary basis, should have the right to establish and join organizations of their own choosing. Recalling that the Conference Committee expressed the hope that the necessary measures will be taken in the near future to ensure freedom of association rights for civil servants, the Committee requests the Government to provide information in its next report on any legislative measure taken or contemplated to ensure that civil servants, including teachers, legislative employees and temporary officers, enjoy the right to establish and join organizations of their choosing.

Right of workers to establish organizations without previous authorization. The Committee had previously requested the Government to indicate whether workers’ and employers’ organizations might be refused registration and in that case, to indicate the permissible grounds for such a refusal. The Committee noted that the Government indicated that the criteria and procedures for the registration were set out in Prakas No. 021 and that, if authorities do not reply within two months after receipt of an organization’s registration form, the organization is considered to be registered. The Committee takes due note of the Government’s statement, in its report, that there has not been any refusal of registration and that a request for registration only has to meet the criteria set out in the Labour Code and Prakas No. 021 to be successful.

Article 3. Right to elect representatives freely. The Committee had previously requested the Government to amend section 269(3) of the Labour Law, which disqualifies persons convicted of any crime from being elected to the post of responsible for the administration and management of a professional organization, as well as section 2(3) of Prakas No. 021 on the registration of professional organizations, which provides that the persons responsible for the leadership and administration of the organization should never have been convicted of any criminal acts, in order to limit this restriction to convictions clearly touching upon the integrity of the person concerned. The Committee notes that the Government indicates in its report that the Ministry will continue to implement the existing labour law until the Trade Union Law is in force. The Committee recalls that conviction on account of offences, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the exercise of trade union functions, should not constitute grounds for disqualification from holding trade union office, and any legislation providing for disqualification on the basis of any offence is incompatible with the principles of freedom of association. In the framework of the drafting of the Trade Union Law, the Committee requests the Government to take the necessary measures to ensure that the abovementioned principle will be taken into account, and to provide information in this respect in its next report.

Furthermore, the Committee had previously requested the Government to amend section 269(4) of the Labour Law, which requires trade union members to be engaged in the profession or the job for at least one year before being elected to trade union office. The Committee notes that the Government indicates in its report that the Ministry will continue to implement the existing labour law until the Trade Union Law is in force. The Committee recalls that provisions of this type infringe the organizations’ right to elect representatives in full freedom by preventing qualified persons from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons among their own ranks. The Committee considers that in order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey, op. cit., paragraph 117). In the framework of the drafting of the Trade Union Law, the Committee requests the Government to take the necessary measures to ensure that the abovementioned principle will be taken into account, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have been engaged in the industry for less than one year and those who have previously been employed in the organization concerned.

Right to strike. Previously, the Committee had requested the Government to amend section 326(1) of the Labour Law, which provides that a minimum service should be arranged in the enterprise where a strike is taking place and if there is no agreement between the parties to the dispute, that the Ministry of Labour shall determine the minimum services in question. The Committee notes that the Government indicates in its report that the Ministry will continue to implement the existing labour law until the Trade Union Law is in force. The Committee recalls that the authorities may establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. Minimum services could be appropriate in situations in which a substantial restriction or a total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption (see General Survey, op. cit., paragraphs 160 and 162). In the framework of the drafting of the Trade Union Law, the Committee once again requests the Government to take the necessary measures to ensure that minimum services will be in keeping with the abovementioned principles and, in particular, to: (1) amend section 326(2) of the Labour Law, which provides that workers who are required to provide minimum service and who do not appear for such work are considered guilty of serious misconduct; and (2) amend the legislation so as to ensure that any disagreement concerning the establishment of minimum services is settled by an independent body having the confidence of all the parties to the dispute, and not the executive or administrative authority.

Article 5. Right of organizations to affiliate with international organizations. The Committee had previously requested the Government to indicate whether the unions of professional organizations have the right to affiliate with international organizations, and to specify the relevant legislative provisions. The Committee notes that the Government indicates in its report that although no legal provisions provide for this right at present, in practice, many trade unions are affiliated with international organizations and that the upcoming Trade Union Law will include a provision guaranteeing this right. The Committee requests the Government to indicate in its next report the progress made to include expressly this right in its legislation, in order to align the law with its practice.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) dated 24 August 2010, concerning acts of violence and harassment against trade union leaders and members as well as other violations of the Convention. The Committee notes, in particular, the information provided by the ITUC regarding the absence of a labour court, the overall deficiency of the judicial system in respect of the murders of trade unionists Chea Vichea and Ros Sovannareth and the persistent climate of repression towards trade union activities.

The Committee further notes the comments made by the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC) dated 31 August 2010, indicating that independent trade unions remain fragile, under-resourced and operating in an extremely difficult context; that the FTUWKC struggles to be recognized by the Government as a valid stakeholder in the policy-making process; and that there has been no let up in anti-union harassment, intimidation and dismissal of union members, who continue to face police violence, attacks, weak law enforcement and employer impunity. The Committee also notes that the FTUWKC indicates that the 2009 Law on Peaceful Demonstrations severely impacts on the organization of strikes, rallies and other union activities and that the 2009 Penal Code, by retaining defamation and disinformation as criminal offences, potentially affects trade union activities. The Committee urges the Government to send its observations on all the issues raised by the ITUC and the FTUWKC in its next report.

In addition, the Committee notes the conclusions and recommendations of the Committee on Freedom of Association concerning the murders of trade union leaders Chea Vichea, Ros Sovannareth and Hy Vuthy and the continuing repression of unionists (Case No. 2318) as well as the denial of the right to form trade unions of public employees (Case No. 2222).

As regards the impunity prevailing in the murder of the abovementioned trade unionists, the Committee recalls that two individuals were convicted for the murder of Chea Vichea (Sok Sam Oeun and Born Samnang) and Thach Saveth was convicted of the murder of Ros Sovannareth in trials that were fraught with judicial irregularities and an absence of due process. Despite international calls for full, independent and impartial investigations since the moment of these murders, as well as that of Hy Vuthy, the Government has failed to provide any information on the steps taken in this regard or to provide any independent report. While noting that the convictions of Sok Sam Oeun and Born Samnang were remanded to the Appeal Court by the Supreme Court and that they have now been released on bail, the Government has yet to provide any information on the investigations to be carried out to determine the actual murderers and instigators of the assassination of Chea Vichea. Moreover, Thach Saveth has been awaiting a review of his conviction by the Supreme Court for several years now. No information has been provided on the progress made of investigations into the murder of Hy Vuthy.

Finally, the Committee takes note of the discussions on Cambodia in the Conference Committee on the Application of Standards (June 2010). It notes in particular that the Conference Committee regretted the lack of information relating to the long-awaited independent investigations into these murders. The Conference Committee recalled that freedom of association rights of workers and employers can only be exercised in a climate free from violence, pressure and threats and urged the Government to ensure respect for this fundamental principle and bring an end to impunity by taking the necessary steps, as a matter of urgency, to ensure full and impartial investigations into the murders of these trade union leaders and to bring, not only the perpetrators, but also the instigators of these heinous crimes to justice. Moreover, noting the serious flaws observed in the judicial process, as already observed by the Supreme Court, the Conference Committee indicated that it expected that the criminal charges against those earlier convicted for these murders would be immediately dropped and that the Supreme Court would rapidly review the appeal by Thach Saveth and ensure his release.

Trade union rights and civil liberties. In its previous observation, the Committee urged the Government to take all the necessary measures to ensure that the trade union rights of workers were fully respected and that trade unionists were able to engage in their activities in a climate free of intimidation and risk. The Committee takes note of the comments made by the ITUC as well as of the discussion during the Conference Committee, regarding the persistent climate of violence and intimidation towards union members. The Committee recalls, once again, that freedom of association can only be exercised in a climate that is free from violence, pressure or threats of any kind against leaders and members of workers’ organizations and that detention of trade unionists for reasons connected with their activities in defence of the interests of workers, constitutes a serious interference with civil liberties in general and with trade union rights in particular. The Committee further recalls that workers have the right to participate in peaceful demonstrations to defend their occupational interests. In light of the above, the Committee once again urges the Government to take all the necessary measures, in the very near future, to ensure that trade union rights of workers are fully respected and that trade unionists are able to engage in their activities in a climate free of intimidation and risk to their personal security and their lives, in accordance with the abovementioned principles.

As regards the murders of trade unionists Chea Vichea, Ros Sovannareth and Hy Vuthy, in its previous observation the Committee requested the Government, to take concrete and tangible steps, as a matter of urgency, to carry out independent inquiries and to facilitate an expedited review of the convictions of Born Samnang and Sok Sam Oeun for the murder of Chea Vichea as well as of the conviction of Thach Saveth for the murder of Ros Sovannareth, and to take steps for their release pending the outcome of the above independent inquiries. The Committee notes that the Government indicated during the discussions in the Conference Committee that Born Samnang and Sok Sam Oeun had been released on bail, pending the re-hearing of their case by the Appeal Court, after the Supreme Court found inadequacies in the criminal procedure. The Government adds in its report that it had not received information on the prospective date of the re-hearing. The Committee notes that the FTUWKC indicates that, while on 17 August 2009, the Appeal Court ordered Chea Vichea’s case to be reopened for further investigation, no subsequent inquiries were carried out. The Committee notes with concern that the Government does not provide any information in its report on any progress made with regard to the investigations into these three murders. The Committee therefore once again urges the Government to bring an end to impunity by taking the necessary steps, as a matter of urgency, to ensure full and impartial investigations into the murders of the abovementioned trade union leaders and to bring, not only the perpetrators, but also the instigators of these heinous crimes to justice. In particular, the Committee urges the Government to provide, with its next report, precise and detailed information on:

(i)    the steps taken to exonerate Born Samnang and Sok Sam Oeun of all charges brought against them and to return the bail paid, as well as to reopen a full investigation into the murder of Chea Vichea as requested by the Supreme Court;

(ii)   the awaited review by the Supreme Court of the decision of the Appeal Court regarding the conviction of Thach Saveth for the murder of Ros Sovannareth, and the opening of an investigation into that crime; and

(iii)  the outcome of the investigation into the murder of Hy Vuthy.

Independence of the judiciary. In its previous observation, the Committee, noting the conclusions of the ILO direct contacts mission of April 2008, referring to serious problems of capacity and lack of independence of the judiciary, requested the Government to take concrete and tangible steps, as a matter of urgency, to ensure the independence and effectiveness of the judicial system, including capacity-building measures and the institution of safeguards against corruption. In this regard, the Committee notes the report of the UN Special Rapporteur on the situation of human rights in Cambodia of 16 September 2010, which recommends various steps to enhance the independence of the judiciary and, in particular, the adoption without delay of the Law on the Status of Judges and Prosecutors and the Law on the Organization and Functioning of the Courts. The Committee requests the Government to provide, with its next report, information on the measures taken or contemplated to ensure the independence and effectiveness of the judicial system, in particular as regards the adoption of the Law on the Status of Judges and Prosecutors and the Law on the Organization and Functioning of the Courts, together with a copy of the relevant legislations.

Rule of law and legislative developments. Finally, the Committee notes that the Government recalled during the discussions in the Conference Committee that: (i) it was considering the creation of a labour court in accordance with international standards; and (ii) the draft Trade Union Law on which it is working in cooperation with the ILO will be adopted by Parliament in 2011 and it expects the law to guarantee the right of workers and employers to organize and bargain collectively. The Government adds in its report that the Working Group of the Ministry of Labour and Vocational Training has finished its review of the draft Trade Union Law consisting of 17 chapters (90 articles), that the draft has now been sent to the ILO for review, that it will then be brought to consult with workers’ and employers’ associations separately and that it will then be put in the open multi-party meeting (gathering representatives of Government’s institutions, trade unions, employer associations and international organizations, including the ILO and the International Finance Corporation (World Bank Group)). The Committee requests the Government to provide, with its next report, information on the creation of the labour court and the adoption of the Trade Union Law, as well as on the consultation processes held in that respect.

Recalling its request to the Government to make every effort to take the necessary action to bring its legislation into conformity with the Convention, the Committee reminds the Government that, if it so wishes, it may have recourse to the technical assistance of the Office.

The Committee is raising other points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. Previously, the Committee had requested the Government to provide copies of the laws providing for the right to establish and join organizations of judges, as well as temporary and permanently appointed officials in the public service. In this regard, the Committee notes that the Government does not refer to any laws specifically covering the above categories of public employee, but instead reiterates that employees of the legislature and judiciary are not covered by the Common Statutes for Civil Servants. In these circumstances, the Committee recalls that with the exception of the members of the police and the armed forces, the guarantee of the right of association should apply to all workers, including public servants and officials. All public servants and officials should have the right to establish occupational organizations, irrespective of whether they are engaged in the state administration, are officials of bodies which provide important public services or are employed in state-owned economic undertakings (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 48, 49 and 55). Moreover, all workers, whether they are employed on a permanent or temporary basis, should have the right to establish and join organizations of their own choosing. The Committee therefore asks the Government to take the necessary legislative measures so as to ensure that judges and temporarily and permanently appointed officials in the public service enjoy the right to establish and join organizations. Further noting the Government’s indication that “civil servants of the legislative order” – also excluded from the provisions of the Common Statutes for Civil Servants – are employees of the Secretariats of the National Assembly and Senate, the Committee requests the Government to indicate the legislation which ensures that these categories of public employee enjoy the right to establish and join organizations, and to provide copies of the relevant legislation.

Right of workers to establish organizations without previous authorization. The Committee had previously noted section 268 of the Labour Law concerning the registration procedure and requested the Government to provide details on the registration procedure and, in particular, to indicate whether workers’ and employers’ organizations might be refused registration. The Government indicates, in this regard, that new criteria and procedures relating to registration are set out in Prakas No. 021, dated 15 February 2006. The Government further states that if the authorities do not reply within two months after receipt of an organization’s registration form, the organization is considered to be registered. While noting these indications, the Committee nevertheless observes that Prakas No. 021 of 2006 does not state whether organizations’ requests for registration might be refused, and on what basis. Accordingly, the Committee requests the Government to indicate whether workers’ and employers’ organizations might be refused registration and, if that is the case, to indicate the permissible grounds for such a refusal. It further asks the Government to provide details on the registration procedure and to indicate any cases where registration may have been denied.

Article 3. Right to elect representatives freely. The Committee had previously requested the Government to amend section 269(3) of the Labour Law, which disqualifies persons convicted of any crime from being elected to the post of responsible for the administration and management of a professional organization, as well as section 2(3) of Prakas No. 21 of 2006 on the registration of professional organizations, which provides that persons responsible for the leadership and administration of the organization should never have been convicted of any criminal acts, in order to limit this restriction to convictions clearly touching upon the integrity of the person concerned. The Government had indicated in this regard that these matters would be addressed in the upcoming Trade Union Law. In these circumstances, the Committee expresses the hope that under the Trade Union Law persons may only be disqualified from holding trade union office for convictions clearly touching upon the integrity of the person concerned. It requests the Government to indicate the progress made with respect to the drafting of the Trade Union Law and to provide it with a copy upon its adoption.

The Committee had also previously requested the Government to amend section 269(4) of the Labour Law, which requires trade union members to be engaged in the profession or the job for at least one year before being elected to trade union office. The Committee had noted the Government’s indication that the purpose of that requirement is to ensure that trade union officials possess knowledge and experience. The Government had further indicated that it would consider amending section 269(4), although it did not presently intend to do so. In this regard, the Committee recalls that provisions of this type infringe the organizations’ right to elect representatives in full freedom by preventing qualified persons from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons among their own ranks. In order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey, op. cit., paragraph 117). Accordingly, the Committee requests the Government to amend section 269(4) of the Labour Law in order to bring it into conformity with the Convention, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have been engaged in the industry for less than one year and those who have previously been employed in the organization concerned.

Right to strike. Previously, the Committee had requested the Government to amend section 326(1) of the Labour Law, which provides that a minimum service should be arranged in the enterprise where a strike is taking place and if there is no agreement between the parties to the dispute, that the Ministry of Labour shall determine the minimum services in question. The Committee noted the Government’s indication that in drafting the Trade Union Law it would consider defining “minimum services” narrowly, so as to refer only to minimum services to ensure public safety or protection against destruction of productive assets, or in public utilities. The Government had further indicated that it would consider empowering the Arbitration Council or another independent arbitrator to determine minimum services under the Trade Union Law. In these circumstances, the Committee recalls that the authorities may establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. Minimum services could be appropriate in situations in which a substantial restriction or a total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption (see General Survey, op. cit., paragraphs 160 and 162). The Committee trusts that minimum services provided for under the Trade Union Law will be in keeping with the abovementioned principles. Moreover, the Committee once again requests the Government to take the necessary measures to: (1) amend section 326(2) of the Labour Law, which provides that workers who are required to provide minimum service and who do not appear for such work are considered guilty of serious misconduct; and (2) amend the legislation so as to ensure that any disagreement concerning the establishment of minimum services is settled by an independent body having the confidence of all the parties to the dispute, and not the executive or administrative authority.

Article 5. Right of organization to affiliate with international organizations. The Committee had previously requested the Government to indicate whether the unions of professional organizations have the right to affiliate with international organizations, and to specify the relevant legislative provisions. The Government had indicated in this respect that although no legal provisions provide for this right at present, in practice many trade unions are affiliated with international organizations. Further noting the Government’s indication that the Trade Union Law would include a provision guaranteeing this right, the Committee requests the Government to indicate the progress made in this regard.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the comments submitted in August 2009 by the International Trade Union Confederation (ITUC) and the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC), concerning acts of violence, and harassment against trade union leaders and trade unionists, as well as other violations of the Convention. The Committee requests the Government to send its observations thereon. The Committee further notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2318 (351st Report).

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

In its previous comment, the Committee had taken note of the discussion on Cambodia in the Conference Committee on the Application of Standards in 2007, and in particular that the Conference Committee had expressed its deep concern at the statements made concerning the assassination of the trade unionists Chea Vichea, Ros Sovannareth, and Hy Vuthy; death threats; and the emerging climate of impunity in the country. The Conference Committee, recalling that the rights of workers’ and employers’ organizations could only be exercised in a climate free from violence, pressure or threats of any kind against the leaders and members of these organizations, had called upon the Government to take the necessary measures to ensure respect for this fundamental principle and bring an end to impunity; it further urged the Government to take steps immediately to ensure full and independent investigations into the murders of the abovementioned Cambodian trade union leaders so as to bring not only the perpetrators, but also the instigators of these heinous crimes to justice.

Having also noted the ITUC’s comments on the irregularities that had attended the trials of Born Samnang and Sok Sam Oeun, the two men convicted of Chea Vichea’s murder despite substantial evidence of their innocence, and numerous acts of harassment and violence against trade union leaders, the Committee had urged the Government to take the necessary measures, including the initiation of judicial inquiries, to bring an end to the acts of violence and intimidation against trade union officials and members. Finally, the Committee had noted the Government’s acceptance of an ILO direct contacts mission, as requested by the Conference Committee, and had expressed the firm hope that the mission would achieve significant results in respect of all of the serious matters raised above.

Against this backdrop, the Committee notes with concern that according to the FTUWKC, a campaign of systematic violence and repression has been carried out against it in one factory, comprising vicious attacks on union leaders by gangs outside the factory; the violent dispersal of a FTUWKC rally, in which one worker was shot in the back by the police and 16 trade unionists were arrested and detained; the dismissal of 1,500 workers following the protest, virtually all of whom were FTUWKC leaders or members; and the subsequent blacklisting of the dismissed individuals by the management, which had distributed their names and photos to other factories. The FTUWKC also asserts that the authorities have done little to investigate the serious injuries inflicted on union leaders, and in fact have been regularly involved in the violent suppression of worker protests, strikes and marches at various factories.

The ITUC also indicates that in many factories trade unionists continue to face repression of all kinds, with virtually no intervention from the authorities. Anti-union acts include beatings from hired thugs, death threats, blacklisting, the bringing of trade unionists before the courts on false charges, wage deductions and exclusion from promotion. One FTUWKC leader was beaten by four or five masked individuals armed with iron rods on his way home from work. The ITUC also refers to the continued obstruction of the activities of the Cambodian Independent Teachers’ Association (CITA), which the Government does not recognize as a trade union and whose demonstrations and protests have often been prohibited. Another organization, the Cambodian Independent Civil Service Association (CICSA), is also not recognized as a trade union.

Finally, the Committee takes note of the report of the direct contacts mission to Cambodia, held on 21 to 25 April 2008. The Committee notes with grave concern that the mission report contains, inter alia, the following conclusions: (1) that the Cambodian judiciary is plagued by serious problems of capacity and a lack of independence, (2) that the conviction of Born Samnang and Sok Sam Oeun for the murder of trade union leader Chea Vichea was upheld on 12 April 2007, in a trial marked by procedural irregularities, including the Court’s refusal to entertain evidence of their innocence; (3) that Thach Saveth was sentenced to 15 years in prison for the murder of trade union leader Ros Sovannareth; and (4) that no concrete steps had been indicated by the Government to ensure a meaningful and independent review of the outstanding cases. The Committee notes with concern, moreover, that it has received no information on any progress made in the investigation respecting Hy Vuthy.

In these circumstances, the Committee can only deplore the absence of any further developments in this regard in the Government’s report, six months after the direct contacts mission. It requests the Government to take the necessary measures to take concrete and tangible steps, as a matter of urgency: (1) to carry out independent inquiries, as a matter of urgency, into the murders of Chea Vichea, Ros Sovannareth and Hy Vuthy; (2) to facilitate an expedited review of the convictions of Born Samnang and Sok Sam Oeun for the murder of Chea Vichea, as well as the conviction of Thach Saveth for the murder of Ros Sovannareth, and to take steps for their release pending the outcome of the above independent inquiries; (3) to take the necessary steps to ensure the independence and effectiveness of the judicial system, including capacity-building measures and the institution of safeguards against corruption. In this regard, the Committee suggests that the Government have recourse to the technical cooperation facilities of the Office, notably in the area of reinforcing institutional capacity, as well as with respect to the establishment of labour courts and the revision of the Law on Trade Unions. Finally, it urges the Government, as also requested by the Committee on Freedom of Association, to take all necessary measures to ensure that the trade union rights of workers in Cambodia are fully respected and that trade unionists are able to exercise their activities in a climate free of intimidation and risk to their personal security and their lives.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

The Committee notes the conclusions and recommendations made by the Committee on Freedom of Association in Case No. 2318 and in particular the decision of the Supreme Court on 31 December 2008 ordering the release of Born Samnang and Sok Sam Oeun. Observing in this regard that the Supreme Court had also ordered the reopening of the investigation into Chea Vichea’s murder, the Committee, like the Committee on Freedom of Association, urges the Government to ensure that the investigation is prompt, independent and expeditiously carried out, and to indicate the outcome.

Finally, the Committee notes the Government’s reply to the 2008 comments submitted by the ITUC and the FTUWKC and hopes that the task force which examines the reform of the trade union legislation will take into account all issues raised by the Committee. Furthermore, the Committee notes that the Government indicates that more than 1,000 trade unions have been established and that tripartite activities have been conducted.

[The Government is asked to supply full particulars to the Conference at its 99th Session and to reply in detail to the present comments in 2010.]

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. Previously, the Committee had requested the Government to provide copies of the laws providing for the right to establish and join organizations of judges, as well as temporary and permanently appointed officials in the public service. In this regard, the Committee notes that the Government does not refer to any laws specifically covering the above categories of public employee, but instead reiterates that employees of the legislature and judiciary are not covered by the Common Statutes for Civil Servants. In these circumstances, the Committee recalls that with the exception of the members of the police and the armed forces, the guarantee of the right of association should apply to all workers, including public servants and officials. All public servants and officials should have the right to establish occupational organizations, irrespective of whether they are engaged in the state administration, are officials of bodies which provide important public services or are employed in state-owned economic undertakings (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 48, 49 and 55). Moreover, all workers, whether they are employed on a permanent or temporary basis, should have the right to establish and join organizations of their own choosing. The Committee therefore asks the Government to take the necessary legislative measures so as to ensure that judges and temporarily and permanently appointed officials in the public service enjoy the right to establish and join organizations. Further noting the Government’s indication that “civil servants of the legislative order” – also excluded from the provisions of the Common Statutes for Civil Servants – are employees of the Secretariats of the National Assembly and Senate, the Committee requests the Government to indicate the legislation which ensures that these categories of public employee enjoy the right to establish and join organizations, and to provide copies of the relevant legislation.

Right of workers to establish organizations without previous authorization  The Committee had previously noted section 268 of the Labour Law concerning the registration procedure and requested the Government to provide details on the registration procedure and, in particular, to indicate whether workers’ and employers’ organizations might be refused registration. The Government indicates, in this regard, that new criteria and procedures relating to registration are set out in Prakas No. 021, dated 15 February 2006. The Government further states that if the authorities do not reply within two months after receipt of an organization’s registration form, the organization is considered to be registered. While noting these indications, the Committee nevertheless observes that Prakas No. 021 of 2006 does not state whether organizations’ requests for registration might be refused, and on what basis. Accordingly the Committee requests the Government to indicate whether workers’ and employers’ organizations might be refused registration and, if that is the case, to indicate the permissible grounds for such a refusal. It further asks the Government to provide details on the registration procedure and to indicate any cases where registration may have been denied.

Article 3. Right to elect representatives freely. The Committee had previously requested the Government to amend section 269(3) of the Labour Law, which disqualifies persons convicted of any crime from being elected to the post of responsible for the administration and management of a professional organization, as well as section 2(3) of Prakas No. 21 of 2006 on the registration of professional organizations, which provides that persons responsible for the leadership and administration of the organization should never have been convicted of any criminal acts, in order to limit this restriction to convictions clearly touching upon the integrity of the person concerned. The Government indicates in this regard that these matters would be addressed in the upcoming Trade Union Law. In these circumstances, the Committee expresses the hope that under the Trade Union Law persons may only be disqualified from holding trade union office for convictions clearly touching upon the integrity of the person concerned. It requests the Government to indicate the progress made with respect to the drafting of the Trade Union Law and to provide it with a copy upon its adoption.

The Committee had also previously requested the Government to amend section 269(4) of the Labour Law, which requires trade union members to be engaged in the profession or the job for at least one year before being elected to trade union office. The Committee notes the Government’s indication that the purpose of that requirement is to ensure that trade union officials possess knowledge and experience. The Government further states that it would consider amending section 269(4), although it did not presently intend to do so. In this regard, the Committee recalls that provisions of this type infringe the organizations’ right to elect representatives in full freedom by preventing qualified persons from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons among their own ranks. In order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey, op. cit., paragraph 117). Accordingly, the Committee requests the Government to amend section 269(4) of the Labour Law in order to bring it into conformity with the Convention, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have been engaged in the industry for less than one year and those who have previously been employed in the organization concerned.

Right to strike. Previously, the Committee had requested the Government to amend section 326(1) of the Labour Law, which provides that a minimum service should be arranged in the enterprise where a strike is taking place and if there is no agreement between the parties to the dispute, that the Ministry of Labour shall determine the minimum services in question. The Committee notes the Government’s indication that in drafting the Trade Union Law it would consider defining “minimum services” narrowly, so as to refer only to minimum services to ensure public safety or protection against destruction of productive assets, or in public utilities. The Government further states that it would consider empowering the Arbitration Council or another independent arbitrator to determine minimum services under the Trade Union Law. In these circumstances, the Committee recalls that the authorities may establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. Minimum services could be appropriate in situations in which a substantial restriction or a total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption (see General Survey, op. cit., paragraphs 160 and 162). The Committee trusts that minimum services provided for under the Trade Union Law will be in keeping with the abovementioned principles. Moreover, the Committee once again requests the Government to take the necessary measures to: (1) amend section 326(2) of the Labour Law, which provides that workers who are required to provide minimum service and who do not appear for such work are considered guilty of serious misconduct; and (2) amend the legislation so as to ensure that any disagreement concerning the establishment of minimum services is settled by an independent body having the confidence of all the parties to the dispute, and not the executive or administrative authority.

Article 5. Right of organization to affiliate with international organizations.  The Committee had previously requested the Government to indicate whether the unions of professional organizations have the right to affiliate with international organizations, and to specify the relevant legislative provisions. The Government states in this respect that although no legal provisions provide for this right at present, in practice many trade unions are affiliated with international organizations. Further noting the Government’s indication that the Trade Union Law would include a provision guaranteeing this right, the Committee requests the Government to indicate the progress made in this regard.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) and the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC), in communications of 29 August 2008. The Committee further notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2318 (351st Report).

In its previous comment, the Committee had taken note of the discussion on Cambodia in the Conference Committee on the Application of Standards in 2007, and in particular that the Conference Committee had expressed its deep concern at the statements made concerning the assassination of the trade unionists Chea Vichea, Ros Sovannareth, and Hy Vuthy; death threats; and the emerging climate of impunity in the country. The Conference Committee, recalling that the rights of workers’ and employers’ organizations could only be exercised in a climate free from violence, pressure or threats of any kind against the leaders and members of these organizations, had called upon the Government to take the necessary measures to ensure respect for this fundamental principle and bring an end to impunity; it further urged the Government to take steps immediately to ensure full and independent investigations into the murders of the abovementioned Cambodian trade union leaders so as to bring not only the perpetrators, but also the instigators of these heinous crimes to justice.

Having also noted the ITUC’s comments on the irregularities that had attended the trials of Born Samnang and Sok Sam Oeun, the two men convicted of Chea Vichea’s murder despite substantial evidence of their innocence, and numerous acts of harassment and violence against trade union leaders, the Committee had urged the Government to take the necessary measures, including the initiation of judicial inquiries, to bring an end to the acts of violence and intimidation against trade union officials and members. Finally, the Committee had noted the Government’s acceptance of an ILO direct contacts mission, as requested by the Conference Committee, and had expressed the firm hope that the mission would achieve significant results in respect of all of the serious matters raised above.

Against this backdrop, the Committee notes with concern that according to the FTUWKC, a campaign of systematic violence and repression has been carried out against it in one factory, comprising vicious attacks on union leaders by gangs outside the factory; the violent dispersal of a FTUWKC rally, in which one worker was shot in the back by the police and 16 trade unionists were arrested and detained; the dismissal of 1,500 workers following the protest, virtually all of whom were FTUWKC leaders or members; and the subsequent blacklisting of the dismissed individuals by the management, which had distributed their names and photos to other factories. The FTUWKC also asserts that the authorities have done little to investigate the serious injuries inflicted on union leaders, and in fact have been regularly involved in the violent suppression of worker protests, strikes and marches at various factories.

The ITUC also indicates that in many factories trade unionists continue to face repression of all kinds, with virtually no intervention from the authorities. Anti-union acts include beatings from hired thugs, death threats, blacklisting, the bringing of trade unionists before the courts on false charges, wage deductions and exclusion from promotion. One FTUWKC leader was beaten by four or five masked individuals armed with iron rods on his way home from work. The ITUC also refers to the continued obstruction of the activities of the Cambodian Independent Teachers’ Association (CITA), which the Government does not recognize as a trade union and whose demonstrations and protests have often been prohibited. Another organization, the Cambodian Independent Civil Service Association (CICSA), is also not recognized as a trade union.

Finally, the Committee takes note of the report of the direct contacts mission to Cambodia, held on 21 to 25 April 2008. The Committee notes with grave concern that the mission report contains, inter alia, the following conclusions: (1) that the Cambodian judiciary is plagued by serious problems of capacity and a lack of independence, (2) that the conviction of Born Samnang and Sok Sam Oeun for the murder of trade union leader Chea Vichea was upheld on 12 April 2007, in a trial marked by procedural irregularities, including the Court’s refusal to entertain evidence of their innocence; (3) that Thach Saveth was sentenced to 15 years in prison for the murder of trade union leader Ros Sovannareth; and (4) that no concrete steps had been indicated by the Government to ensure a meaningful and independent review of the outstanding cases. The Committee notes with concern, moreover, that it has received no information on any progress made in the investigation respecting Hy Vuthy.

In these circumstances, the Committee can only deplore the absence of any further developments in this regard in the Government’s report, six months after the direct contacts mission. It requests the Government to take the necessary measures to take concrete and tangible steps, as a matter of urgency: (1) to carry out independent inquiries, as a matter of urgency, into the murders of Chea Vichea, Ros Sovannareth and Hy Vuthy; (2) to facilitate an expedited review of the convictions of Born Samnang and Sok Sam Oeun for the murder of Chea Vichea, as well as the conviction of Thach Saveth for the murder of Ros Sovannareth, and to take steps for their release pending the outcome of the above independent inquiries; (3) to take the necessary steps to ensure the independence and effectiveness of the judicial system, including capacity-building measures and the institution of safeguards against corruption. In this regard, the Committee suggests that the Government have recourse to the technical cooperation facilities of the Office, notably in the area of reinforcing institutional capacity, as well as with respect to the establishment of labour courts and the revision of the Law on Trade Unions. Finally, it urges the Government, as also requested by the Committee on Freedom of Association, to take all necessary measures to ensure that the trade union rights of workers in Cambodia are fully respected and that trade unionists are able to exercise their activities in a climate free of intimidation and risk to their personal security and their lives.

The Committee is addressing a request on other points directly to the Government.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee had previously requested the Government to amend the legislation so as to ensure that judges as well as temporarily and permanently appointed officials in the public service enjoy the right to establish and join organizations. In this respect, the Committee notes the Government’s indication that judges, temporary and permanently appointed officials in the public service are governed by separate laws of public institutions or ministries that are effective to protect their rights, and that these officials have the right, granted by law, to organize and participate in associations. In order to be able to adequately assess the matter, the Committee requests the Government to provide copies of the laws providing for the right to establish and join organizations of all the categories of public servant referred to above.

The Committee regrets that the Government has not provided information on the other points on the application of the Convention that it had previously raised. The Committee therefore once again requests the Government:

–           to specify the meaning of “civil servants of the legislative order” mentioned in section 1 of the Common Statutes for Civil Servants;

–           to provide details on the registration procedure and, in particular, to indicate whether workers’ and employers’ organizations might be refused registration;

–           to amend section 269(3) of the Labour Law, which disqualifies persons convicted of any crime from being elected to the post of responsible for the administration and management of a professional organization, as well as section 2(3) of Prakas No. 21 of 2006 on the registration of professional organizations, which provides that persons responsible for the leadership and administration of the organization should never have been convicted of any criminal acts, in order to limit this restriction to convictions clearly touching upon the integrity of the person concerned;

–           to amend section 269(4) of the Labour Law, which requires trade union members to be engaged in the profession or the job for at least one year before being elected to trade union office, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have been engaged in the industry for less than one year and those who have previously been employed in the organization concerned;

–           to amend section 326(1), which provides that a minimum service should be arranged in the enterprise where the strike is taking place and if there is no agreement between the parties to the dispute, the Ministry of Labour shall determine the minimum services in question;

–           to amend section 326(2) of the Labour Law, which provides that workers who are required to provide minimum service and who do not appear for such work are considered guilty of serious misconduct;

–           to amend the legislation so as to ensure that any disagreement concerning the establishment of minimum services is settled by an independent body having the confidence of all the parties to the dispute and not the executive or administrative authority; and

–           to indicate whether the unions of professional organizations have the right to affiliate with international organizations, and to specify the relevant legislative provisions.

The Committee expresses the hope that the Government would provide full information on the measures taken or envisaged in respect of all the abovementioned points. Furthermore, the Committee recalls that ILO technical assistance is at its disposal and trusts that the Government will take advantage of it without delay.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report, and the comments submitted by the International Trade Union Confederation (ITUC) in a communication of 28 August 2007. The Committee further notes the discussion in the Conference Committee on the Application of Standards in 2007, and in particular that the Conference Committee had deplored the failure on the part of the Government to provide full reports to the Committee of Experts and expressed its deep concern at the statements made concerning the assassination of the trade unionists Chea Vichea, Ros Sovannareth, and Hy Vuthy; death threats; and the emerging climate of impunity in the country. The Conference Committee had also recalled that the rights of workers’ and employers’ organizations could only be exercised in a climate free from violence, pressure or threats of any kind against the leaders and members of these organizations and called upon the Government to take the necessary measures to ensure respect for this fundamental principle and bring an end to impunity; to this end, it urged the Government to take steps immediately to ensure full and independent investigations into the murders of the abovementioned Cambodian trade union leaders so as to bring not only the perpetrators, but also the instigators of these heinous crimes to justice.

The ITUC refers to the obstruction of the activities of the Cambodian Independent Teachers’ Association (CITA); the conviction, despite a lack of evidence, of union leaders Lach Sambo, Yeom Khun and Sal Koem San for the crime of illegal confinement in connection with a strike; and the refusal by employers to comply with arbitration council orders to reinstate dismissed trade unionists. The ITUC also refers to numerous acts of harassment and violence against trade union leaders and affiliates, including the detainment by the authorities of a Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC) leader, in connection with a 2006 May Day march organized by his union; as well as attacks on FTUWKC officials Chi Simun, Lem Semret, Em Chhay Tieng, Chey Rithy and Yeng Vann Yuth. Finally, the ITUC alleges the introduction of new evidence proving the innocence of the two men convicted in 2005 of the murder of Chea Vichea, president of the FTUWKC. The said evidence includes eyewitness testimony absolving the two men of the murder and testimony from the ex-Chief of the Phnom Penh police corroborating that the two men were framed for the murder. It recalls that it had, on many occasions, stressed the interdependence between civil liberties and trade union rights, emphasizing that a truly free and independent trade union movement can only develop in a climate of respect for fundamental human rights. The exercise of civil liberties in relation to trade union rights should be examined on the basis of the provisions contained in Article 3 of Convention No. 87, and it is in connection with this standard that the respect of certain basic human rights acquires its full importance for trade union life (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 26). The Committee deeply regrets the Government’s lack of reply to the ITUC’s comments, particularly in the light of the gravity of the allegations. In these circumstances, the Committee urges the Government to take the necessary measures, including the initiation of judicial inquiries, to bring an end to the acts of violence and intimidation against trade union officials and members.

The Committee notes that the Conference Committee had urged the Government to accept an ILO direct contacts mission in respect of the serious freedom of association matters raised. In this regard, the Committee notes the Government’s communication of 2 November 2007, wherein the Government indicates that, following a high-level ILO mission to Cambodia in October, it has agreed to an ILO direct contacts mission in March or April 2008. The Committee notes this development with interest and expresses the firm hope that the direct contacts mission will achieve significant results with respect to the serious matters referred to above.

The Committee is addressing a request directly to the Government.

[The Government is asked to reply in detail to the present comments in 2008.]

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes with regret that the Government’s report has not been received. It must therefore once again request the Government:

–         to amend the legislation so as to ensure that judges as well as temporarily and permanently appointed officials in the public service enjoy the right to establish and join organizations;

–         to specify the meaning of “civil servants of the legislative order” mentioned in section 1 of the Common Statutes for Civil Servants;

–         to provide details on the registration procedure and in particular, to indicate whether workers’ and employers’ organizations might be refused registration;

–         to amend section 269(3) of the Labour Law, which disqualifies persons convicted of any crime from being elected for the post of responsible for the administration and management of a professional organization, as well as section 2(3) of Prakas No. 277 on the Registration of Professional Organisations which provides that persons responsible for the leadership and administration of the organization should have never been convicted of any criminal acts, in order to limit this restriction to convictions clearly touching upon the integrity of the person concerned;

–         to amend section 269(4) of the Labour Law, which requires trade union members to be engaged in the profession or the job for at least one year before being elected to trade union office, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have been engaged in the industry for less than one year and those who have previously been employed in the organization concerned;

–         to amend section 326(1), which provides that a minimum service should be arranged in the enterprise where the strike is taking place and if there is no agreement between the parties to the dispute, the Ministry of Labour shall determine the minimum services in question;

–         to amend section 326(2) of the Labour Law, which provides that workers who are required to provide minimum service and who do not appear for such work are considered guilty of serious misconduct;

–         to amend the legislation so as to ensure that any disagreement concerning the establishment of minimum services is settled by an independent body having the confidence of all the parties to the dispute and not the executive or administrative authority; and

–         to indicate whether the unions of professional organizations have the right to affiliate with international organizations, and to specify the relevant legislative provisions.

The Committee requests the Government to keep it informed on the measures taken or envisaged in respect of all the abovementioned points. Furthermore, the Committee recalls that ILO technical assistance is at its disposal and trusts that the Government will take advantage of it without delay.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes with regret that the Government’s report has not been received.

The Committee notes the comments on the application of the Convention submitted by the International Confederation of Free Trade Unions (ICFTU) in a communication of 10 August 2006. The ICFTU refers to matters already raised and alleges a permanent harassment against the Cambodian Independent Teachers’ Association, the arrests and disappearance of trade union leaders, police and military violence against strikers and the conviction of two innocent men for the murder of a trade union leader. In this respect, the Committee recalls that the right of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against leaders and members of these organizations and it is for governments to ensure that this principle is respected. The Committee requests the Government to send its observations on all these serious comments, as well as on the ICFTU comments of 2005 (the exclusion of civil servants from the scope of the Labour Law, the limitations to the right to elect union representatives freely and the restrictions to the right to strike notably by imposing a minimum service requirement in all enterprises regardless of whether they are public utilities, the non-recognition of the Cambodian Construction Trade Union Federation (CCTUF), the murder of two trade union leaders, threats against unionists, intimidation, harassment and physical attacks and that strikes and protests met with violent police repression).

The Committee is addressing a request directly to the Government.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes with regret that the Government’s report has not been received. It must therefore once again request the Government:

–      to amend the legislation so as to ensure that judges as well as temporarily and permanently appointed officials in the public service enjoy the right to establish and join organizations;

–      to specify the meaning of “civil servants of the legislative order” mentioned in section 1 of the Common Statutes for Civil Servants;

–      to provide details on the registration procedure and in particular, to indicate whether workers’ and employers’ organizations might be refused registration;

–      to amend section 269(3) of the Labour Law, which disqualifies persons convicted of any crime from being elected for the post of responsible for the administration and management of a professional organization, as well as section 2(3) of Prakas No. 277 on the Registration of Professional Organisations which provides that persons responsible for the leadership and administration of the organization should have never been convicted of any criminal acts, in order to limit this restriction to convictions clearly touching upon the integrity of the person concerned;

–      to amend section 269(4) of the Labour Law, which requires trade union members to be engaged in the profession or the job for at least one year before being elected to trade union office, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have been engaged in the industry for less than one year and those who have previously been employed in the organization concerned;

–      to amend section 326(1), which provides that a minimum service should be arranged in the enterprise where the strike is taking place and if there is no agreement between the parties to the dispute, the Ministry of Labour shall determine the minimum services in question;

–      to amend section 326(2) of the Labour Law, which provides that workers who are required to provide minimum service and who do not appear for such work are considered guilty of serious misconduct;

–      to amend the legislation so as to ensure that any disagreement concerning the establishment of minimum services is settled by an independent body having the confidence of all the parties to the dispute and not the executive or administrative authority; and

–      to indicate whether the unions of professional organizations have the right to affiliate with international organizations, and to specify the relevant legislative provisions.

The Committee requests the Government to keep it informed on the measures taken or envisaged in respect of all of the above-mentioned points.

The Committee further notes the comments on the application of the Convention submitted by the International Confederation of Free Trade Unions (ICFTU) in a communication of 31 August 2005. The Committee notes that these comments concern legislative issues raised in its previous direct request and, more particularly, the exclusion of civil servants from the scope of the Labour Law, the limitations to the right to elect union representatives freely and the restrictions to the right to strike notably by imposing a minimum service requirement in all enterprises regardless of whether they are public utilities. The ICFTU furthermore alleges that although affiliates of the Cambodian Construction Trade Union Federation (CCTUF) had gained the most representative status at the Angkor Wat conservation project site, management refuses to recognize and negotiate with it. The ICFTU also underlines that two trade union leaders were murdered, that unionists faced threats, intimidation, harassment, and physical attacks and that strikes and protests met with violent police repression. The Committee requests the Government to communicate its observations thereon.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 2 of the Convention. (a) Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee notes that some categories of workers, which include judges, temporarily and permanently appointed officials in the public service as well as persons governed by the Common Statutes for Civil Servants or by the Diplomatic Statutes, are not covered by the provisions on freedom of association of the Labour Law. The Committee notes the Government’s indication that under the Common Statutes for Civil Servants, civil servants have the right to be members or participate in the administration of associations authorized by law. However, the Committee notes that section 1 of the Common Statutes for Civil Servants do not apply to civil servants of the legislative order. The Committee recalls that with the exception of the members of the police and the armed forces, the guarantee of the right of association should apply to all workers, including public servants and officials. All public servants and officials should have the right to establish occupational organizations, irrespective of whether they are engaged in the state administration, are officials of bodies which provide important public services or are employed in state-owned economic undertakings (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 48, 49 and 55). Moreover, all workers, whether they are employed on a permanent or temporary basis, should have the right to establish and join organizations of their own choosing. The Committee therefore asks the Government to amend its legislation so as to ensure that judges and temporarily and permanently appointed officials in the public service enjoy the right to establish and join organizations. It further requests the Government to classify the meaning of "civil servants of the legislative order" mentioned in section 1 of the Common Statutes for Civil Servants.

(b) Right of workers to establish organizations without previous authorization. The Committee notes section 268 of the Labour Law concerning the registration procedure. The Committee notes that the legislation does not state whether organizations’ requests for registration might be refused, and on what basis. The Committee requests the Government to indicate whether workers’ and employers’ organizations might be refused registration and, if that is the case, to indicate the permissible grounds for such a refusal. It further asks the Government to provide details on the registration procedure and to indicate any cases where registration may have been denied.

Article 3. (a) Right to elect their representatives freely. The Committee notes that section 269(3) of the Labour Law disqualifies persons convicted of any crime from being elected for the post of responsible for the administration and management of a professional organization. Furthermore, section 2(3) of Prakas No. 277 on the registration of professional organizations provides that persons responsible for the leadership and administration of the organization should have never been convicted of any criminal acts. In this respect, the Committee recalls that conviction for an act the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from trade union office. Thus, the legislation, which establishes excessively broad ineligibility criteria, for example by means of a long list including acts which have no real connection with the qualities of integrity required for the exercise of trade union office, is incompatible with the Convention (see General Survey, 1994, paragraph 120). The Committee therefore requests the Government to amend section 269(3) of the Labour Law and section 2(3) of Prakas No. 277 so as to limit this restriction to convictions clearly touching upon the integrity of the person concerned.

Furthermore, the Committee notes section 269(4) of the Labour Law, which requires that the members responsible for the administration and management of a professional organization shall, at the time of their election, have been engaged in the profession or the job for at least one year. In this respect, the Committee considers that provisions of this type infringe the organizations’ right to elect representatives in full freedom by preventing qualified persons from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons among their own ranks. In order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey, paragraph 117). The Committee therefore requests the Government to amend its legislation in order to bring it into conformity with the Convention, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have been engaged in the industry for less than one year and those who have previously been employed in the organization concerned.

(b) Right to strike. The Committee notes that according to section 326(1) of the Labour Law, a minimum service should be arranged in the enterprise where the strike is taking place and if there is no agreement between the parties to the dispute, the Ministry of Labour shall determine the minimum services in question. Section 326(2) provides that workers who are required to provide minimum service and who do not appear for such work are considered guilty of serious misconduct. Furthermore, section 334 allows the employer to replace workers who are required to provide minimum services and who do not appear for such work. In this respect, the Committee recalls that the authorities may establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. Minimum services could be appropriate in situations in which a substantial restriction or a total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption (see General Survey, 1994, paragraphs 160 and 162). The Committee therefore requests the Government to amend its legislation so as to ensure that the requirement to establish minimum services is limited to the abovementioned cases, particularly in light of the serious consequences for failure to ensure such services under section 326(2) and the rights afforded to employers under section 334 to hire replacements where minimum services have not been provided. As regards the provision under which any disagreement concerning the establishment of minimum services should be settled by the Ministry of Labour, the Committee requests the Government to amend its legislation so as to ensure that any such disagreement is settled by an independent body having the confidence of all the parties to the dispute and not the executive or administrative authority and to keep it informed of measures taken or envisaged in this regard.

Article 5. Right of organization to affiliate with international organizations. The Committee requests the Government to indicate whether the unions of professional organizations have the right to affiliate with international organizations, and to specify the relevant legislative provisions.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 2 of the Convention. (a) Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee notes that some categories of workers, which include judges, temporarily and permanently appointed officials in the public service as well as persons governed by the Common Statutes for Civil Servants or by the Diplomatic Statutes, are not covered by the provisions on freedom of association of the Labour Law. The Committee notes the Government’s indication that under the Common Statutes for Civil Servants, civil servants have the right to be members or participate in the administration of associations authorized by law. However, the Committee notes that section 1 of the Common Statutes for Civil Servants do not apply to civil servants of the legislative order. The Committee recalls that with the exception of the members of the police and the armed forces, the guarantee of the right of association should apply to all workers, including public servants and officials. All public servants and officials should have the right to establish occupational organizations, irrespective of whether they are engaged in the state administration, are officials of bodies which provide important public services or are employed in state-owned economic undertakings (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 48, 49 and 55). Moreover, all workers, whether they are employed on a permanent or temporary basis, should have the right to establish and join organizations of their own choosing. The Committee therefore asks the Government to amend its legislation so as to ensure that judges and temporarily and permanently appointed officials in the public service enjoy the right to establish and join organizations. It further requests the Government to classify the meaning of "civil servants of the legislative order" mentioned in section 1 of the Common Statutes for Civil Servants.

(b) Right of workers to establish organizations without previous authorization. The Committee notes section 268 of the Labour Law concerning the registration procedure. The Committee notes that the legislation does not state whether organizations’ requests for registration might be refused, and on what basis. The Committee requests the Government to indicate whether workers’ and employers’ organizations might be refused registration and, if that is the case, to indicate the permissible grounds for such a refusal. It further asks the Government to provide details on the registration procedure and to indicate any cases where registration may have been denied.

Article 3. (a) Right to elect their representatives freely. The Committee notes that section 269(3) of the Labour Law disqualifies persons convicted of any crime from being elected for the post of responsible for the administration and management of a professional organization. Furthermore, section 2(3) of Prakas No. 277 on the registration of professional organizations provides that persons responsible for the leadership and administration of the organization should have never been convicted of any criminal acts. In this respect, the Committee recalls that conviction for an act the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from trade union office. Thus, the legislation, which establishes excessively broad ineligibility criteria, for example by means of a long list including acts which have no real connection with the qualities of integrity required for the exercise of trade union office, is incompatible with the Convention (see General Survey, 1994, paragraph 120). The Committee therefore requests the Government to amend section 269(3) of the Labour Law and section 2(3) of Prakas No. 277 so as to limit this restriction to convictions clearly touching upon the integrity of the person concerned.

Furthermore, the Committee notes section 269(4) of the Labour Law, which requires that the members responsible for the administration and management of a professional organization shall, at the time of their election, have been engaged in the profession or the job for at least one year. In this respect, the Committee considers that provisions of this type infringe the organizations’ right to elect representatives in full freedom by preventing qualified persons from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons among their own ranks. In order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey, paragraph 117). The Committee therefore requests the Government to amend its legislation in order to bring it into conformity with the Convention, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have been engaged in the industry for less than one year and those who have previously been employed in the organization concerned.

(b) Right to strike. The Committee notes that according to section 326(1) of the Labour Law, a minimum service should be arranged in the enterprise where the strike is taking place and if there is no agreement between the parties to the dispute, the Ministry of Labour shall determine the minimum services in question. Section 326(2) provides that workers who are required to provide minimum service and who do not appear for such work are considered guilty of serious misconduct. Furthermore, section 334 allows the employer to replace workers who are required to provide minimum services and who do not appear for such work. In this respect, the Committee recalls that the authorities may establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. Minimum services could be appropriate in situations in which a substantial restriction or a total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption (see General Survey, 1994, paragraphs 160 and 162). The Committee therefore requests the Government to amend its legislation so as to ensure that the requirement to establish minimum services is limited to the abovementioned cases, particularly in light of the serious consequences for failure to ensure such services under section 326(2) and the rights afforded to employers under section 334 to hire replacements where minimum services have not been provided. As regards the provision under which any disagreement concerning the establishment of minimum services should be settled by the Ministry of Labour, the Committee requests the Government to amend its legislation so as to ensure that any such disagreement is settled by an independent body having the confidence of all the parties to the dispute and not the executive or administrative authority and to keep it informed of measures taken or envisaged in this regard.

Article 5. Right of organization to affiliate with international organizations. The Committee requests the Government to indicate whether the unions of professional organizations have the right to affiliate with international organizations, and to specify the relevant legislative provisions.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes with interest the information contained in the Government’s first report. It wishes to raise a certain number of points concerning the application of the following Articles of the Convention.

Article 2 of the Convention. (a) Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee notes that some categories of workers, which include judges, temporarily and permanently appointed officials in the public service as well as persons governed by the Common Statutes for Civil Servants or by the Diplomatic Statutes, are not covered by the provisions on freedom of association of the Labour Law. The Committee notes the Government’s indication that under the Common Statutes for Civil Servants, civil servants have the right to be members or participate in the administration of associations authorized by law. However, the Committee notes that section 1 of the Common Statutes for Civil Servants do not apply to civil servants of the legislative order. The Committee recalls that with the exception of the members of the police and the armed forces, the guarantee of the right of association should apply to all workers, including public servants and officials. All public servants and officials should have the right to establish occupational organizations, irrespective of whether they are engaged in the state administration, are officials of bodies which provide important public services or are employed in state-owned economic undertakings (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 48, 49 and 55). Moreover, all workers, whether they are employed on a permanent or temporary basis, should have the right to establish and join organizations of their own choosing. The Committee therefore asks the Government to amend its legislation so as to ensure that judges and temporarily and permanently appointed officials in the public service enjoy the right to establish and join organizations. It further requests the Government to classify the meaning of "civil servants of the legislative order" mentioned in section 1 of the Common Statutes for Civil Servants.

(b) Right of workers to establish organizations without previous authorization. The Committee notes section 268 of the Labour Law concerning the registration procedure. The Committee notes that the legislation does not state whether organizations’ requests for registration might be refused, and on what basis. The Committee requests the Government to indicate whether workers’ and employers’ organizations might be refused registration and, if that is the case, to indicate the permissible grounds for such a refusal. It further asks the Government to provide details on the registration procedure and to indicate any cases where registration may have been denied.

Article 3. (a) Right to elect their representatives freely. The Committee notes that section 269(3) of the Labour Law disqualifies persons convicted of any crime from being elected for the post of responsible for the administration and management of a professional organization. Furthermore, section 2(3) of Prakas No. 277 on the registration of professional organizations provides that persons responsible for the leadership and administration of the organization should have never been convicted of any criminal acts. In this respect, the Committee recalls that conviction for an act the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from trade union office. Thus, the legislation, which establishes excessively broad ineligibility criteria, for example by means of a long list including acts which have no real connection with the qualities of integrity required for the exercise of trade union office, is incompatible with the Convention (see General Survey, 1994, paragraph 120). The Committee therefore requests the Government to amend section 269(3) of the Labour Law and section 2(3) of Prakas No. 277 so as to limit this restriction to convictions clearly touching upon the integrity of the person concerned.

Furthermore, the Committee notes section 269(4) of the Labour Law, which requires that the members responsible for the administration and management of a professional organization shall, at the time of their election, have been engaged in the profession or the job for at least one year. In this respect, the Committee considers that provisions of this type infringe the organizations’ right to elect representatives in full freedom by preventing qualified persons from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons among their own ranks. In order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see General Survey, paragraph 117). The Committee therefore requests the Government to amend its legislation in order to bring it into conformity with the Convention, either by exempting from the occupational requirement a reasonable proportion of the officers of an organization, or by admitting as candidates persons who have been engaged in the industry for less than one year and those who have previously been employed in the organization concerned.

(b) Right to strike. The Committee notes that according to section 326(1) of the Labour Law, a minimum service should be arranged in the enterprise where the strike is taking place and if there is no agreement between the parties to the dispute, the Ministry of Labour shall determine the minimum services in question. Section 326(2) provides that workers who are required to provide minimum service and who do not appear for such work are considered guilty of serious misconduct. Furthermore, section 334 allows the employer to replace workers who are required to provide minimum services and who do not appear for such work. In this respect, the Committee recalls that the authorities may establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. Minimum services could be appropriate in situations in which a substantial restriction or a total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption (see General Survey, 1994, paragraphs 160 and 162). The Committee therefore requests the Government to amend its legislation so as to ensure that the requirement to establish minimum services is limited to the abovementioned cases, particularly in light of the serious consequences for failure to ensure such services under section 326(2) and the rights afforded to employers under section 334 to hire replacements where minimum services have not been provided. As regards the provision under which any disagreement concerning the establishment of minimum services should be settled by the Ministry of Labour, the Committee requests the Government to amend its legislation so as to ensure that any such disagreement is settled by an independent body having the confidence of all the parties to the dispute and not the executive or administrative authority and to keep it informed of measures taken or envisaged in this regard.

Article 5. Right of organization to affiliate with international organizations. The Committee requests the Government to indicate whether the unions of professional organizations have the right to affiliate with international organizations, and to specify the relevant legislative provisions.