Report in which the committee requests to be kept informed of development - Report No 344, March 2007

416. The complaint is set out in a communication dated 25 January 2006. The complainant submitted additional information in a communication of 25 October 2006.

1. 417. The Government submitted partial observations respecting this case in a communication dated 17 October 2006.
2. 418. In the absence of a full reply from the Government, the Committee has been obliged to defer examination of this case on three occasions. At its meeting in November 2006, the Committee made an urgent appeal to the Government, drawing its attention to the fact that, in accordance with the procedural rule set out in paragraph 17 of its 127th Report, approved by the Governing Body, it might submit a report on the substance of the matter at its next meeting even if the information or observations requested from the Government have not been received in due time [see 343rd Report, para. 10]. To date, the Government has not submitted its complete observations.
3. 419. Cambodia has ratified the Freedom of Association and the Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). It has not ratified the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainant’s allegations

1. 420. In its communication of 25 January 2006, the complainant states that in March 2004 Mr Sok Thol, an employee of the Micasa Hotel, was engaged in union-organizing activities. On 22 March 2004 Mr Mike Lee Khengseang, the General Manager of the Micasa Hotel, called Mr Sok Thol in and questioned him with regards to his trade union activities. In particular, Mr Sok Thol was asked whether he was involved in the union movement, and why the union was being formed – to which he replied that he was exercising his right to join a union to protect the benefits of workers. The complainant states that Mr Khengseang replied by threatening to terminate Mr Sok Thol if he continued his union-organizing activities.
2. 421. On 24 March 2004 the employer sent a letter of termination to Mr Sok Thol. The letter of termination offered no cause for the termination, stating only that termination compensation would be provided. The complainant maintains that Mr Sok Thol was terminated due to his trade union activities. On that same day, the employer also distributed a questionnaire form to its employees asking, among other things, whether or not the employee was a member of any union or association.
3. 422. On 25 March 2004, the employer sent letters of termination to three other employees: Mr Kram Sok Kheang, Mr Ean Kim Hun and Mr Ol Serey Vathana. As was the case with Mr Sok Thol, these letters stated no grounds for termination and offered compensation. The complainant contends that these three individuals were terminated because their names had appeared on a list of candidates for union office that Mr Sok Thol had submitted to the employer earlier on that same day.
4. 423. On 26 March 2004 union office elections were held. Mr Sok Thol was elected president and Mr Sok Kheang, Mr Kim Hun and Mr Serey Vathana were elected advisors of the Micasa employees’ union; 86 out of 115 employees participated in the election.
5. 424. Shortly thereafter the Micasa employees’ union sought the complainant’s assistance in obtaining the reinstatement of the four union officers. The complainant states that it filed a complaint to the Ministry of Social Affairs, Labour, Vocational Training and Youth Rehabilitation (MOSALVY), requesting the latter’s intervention in this matter. Although the Ministry held conciliation sessions on 8, 24 and 28 May 2004, the management refused to reinstate the concerned individuals; the issue was then presented before the Arbitration Council. The complainant contends that, during this time, the employer colluded with two inspectors from MOSALVY to form another organization to replace the Micasa employees union.
6. 425. On 6 August 2004, the Arbitration Council issued award No. 41/04. The said award found that the four union officers had been unfairly terminated and ordered their reinstatement with full payment of wage arrears. The employer, however, refused to recognize and accept the Arbitration Council’s award.
7. 426. On 5 January 2005 the employer changed its name to the Himawari hotel. The employment contracts of all the employees were transferred to the newly created entity; staff seniority, however, was recognized only from 2000 onwards.
8. 427. The complainant maintains that it had requested MOSALVY’s intervention to compel the employer to reinstate the four union employees. Although the Government organized conciliation meetings on 23 December 2005 and 20 January 2006, on both occasions the employer refused to attend the meeting.
9. 428. With its 25 January 2006 communication the complainant attaches several documents, including: copies of the four union officers’ termination letters, a copy of the questionnaire form distributed by the employer, and a copy of Arbitration Council award No. 41/04.
10. 429. In a communication of 25 October 2006, the complainant attaches a copy of an Arbitration Council award concerning the reinstatement dispute, dated 3 March 2006 (award No. 08/06). The said award indicates that the dispute was referred to the Arbitration Council by MOSALVY on 27 January 2006.
11. 430. In award No. 08/06 the Arbitration Council noted that article 40, paragraph 2, of Prakas 99/04 states that “if either party to a dispute lodges such an opposition within the specified time frame, the award shall be unenforceable. In this case if the dispute is about a right relating to the application of a rule of law (for example, a provision of the Labour Law, of a collective bargaining agreement, or an arbitral award that takes the place of a collective bargaining agreement) the disputant party may bring the case before the court of competent jurisdiction for final resolution”. As arbitral award No. 41/04 was objected to by the employer on 12 August 2004, the Arbitration Council maintained that that award ceased to have effect and the Council therefore lacked the authority to order compliance with that award. The case was consequently dismissed.
12. B. The Government’s reply
13. 431. In a communication of 17 October 2006, the Government stated that the matters raised under the present case were under investigation.

C. The Committee’s conclusions

1. 432. The Committee deeply deplores the fact that, despite the time that has elapsed since the presentation of this complaint, the Government has not provided its observations as requested in due time, although it has been invited to do so on several occasions, notably through an urgent appeal made at the Committee’s meeting in November 2006. Under these circumstances, and in keeping with the relevant rule of procedure [see the Committee’s 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee must present a report on the substance of the case in the absence of the Government’s observations. The Committee urges the Government to be more cooperative in the future.
2. 433. The Committee reminds the Government, first, that the purpose of the whole procedure concerning allegations of infringements of freedom of association is to ensure respect for freedom of association both in law and in fact. While this procedure protects governments against unreasonable accusations, the governments should in turn recognize the importance of supplying, for objective examination, detailed replies to the allegations made against them [see the Committee’s First Report, para. 31].
3. 434. The Committee notes that the present case involves allegations of: anti-union discrimination; the termination of four employees for their trade union activity; the refusal, on the employer’s part, to accept the reinstatement award of the Arbitration Council or participate in conciliation sessions organized by MOSALVY; and the establishment by the employer of an organization to replace the Micasa employees’ union.
4. 435. The Committee notes that the concerned individuals were terminated for their participation in the establishment of the Micasa employees’ union and had, on a number of occasions, sought reinstatement. The Committee observes moreover that these attempts have thus far proven unsuccessful: in spite of the Arbitration Council’s 6 August 2004 award of reinstatement, and several attempts by MOSALVY to bring a resolution to the matter – on 20 January 2006, most recently – the employer’s refusal to accept the Arbitration Council’s award and engage in meaningful conciliation continues to frustrate the four trade union leaders’ attempts to be reinstated in their previous jobs.
5. 436. When viewed in conjunction with the other complaints against the Government presently before it, the Committee notes with concern that the present allegations follow a series of earlier violations it had previously remarked upon – one characterized by acts of anti-union discrimination, often culminating in dismissals, and an apparent lack of effectiveness of the sanctions provided for in the law to remedy such acts of anti-union discrimination [Case No. 2262, 337th Report, para. 262]. The Committee observes, moreover, that it had also drawn the Government’s attention to the insufficiency of the laws and procedures in place to protect workers against anti-union discrimination in Case No. 2443 [343rd Report, para. 315]. In this regard, the Committee recalls that the Government is responsible for preventing all acts of anti-union discrimination and must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned. Furthermore, legislation must make express provision for appeals and establish sufficiently dissuasive sanctions against acts of anti-union discrimination to ensure the practical application of Articles 1 and 2 of Convention No. 98 [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, paras 817 and 822]. The Committee urges the Government, as it did in the above-cited cases, to take the appropriate steps without delay to ensure that workers enjoy effective protection against acts of anti-union discrimination, including the establishment of sufficiently dissuasive sanctions and rapid final determinations. The Committee invites the Government to further avail itself of the technical assistance of the Office in this regard.
6. 437. Taking into account the specific circumstances of this case, and given that the Government has not provided its observations on the present allegations, the Committee requests the Government to take the necessary steps to ensure that the four trade union leaders are fully reinstated without loss of pay.
7. 438. As regards the employer’s alleged establishment of a trade union in collaboration with two labour inspectors, the Committee recalls that anti-union tactics to encourage union members to withdraw from the union and the presentation of statements of resignation to the workers, as well as alleged efforts made to create puppet unions, are contrary to Article 2 of Convention No. 98, which provides that workers’ and employers’ organizations shall enjoy adequate protection against acts of interference by each other or each other’s agents in their establishment, functioning or administration. The Committee requests the Government to conduct an independent inquiry without delay into the alleged attempt by the employer to establish a puppet union, as well as in respect of any collaboration by the Ministry and, if the allegation proves true, to take the necessary measures to ensure that the employer refrains from such acts of interference in the future.