Informe provisional - Informe núm. 337, Junio 2005

249. The Committee examined this case on its merits at its November 2003 session, where it issued an interim report, approved by the Governing Body at its 288th Session [see 332nd Report, paras. 382-399].

1. 250. The complainant submitted new allegations in a communication dated 28 October 2003.
2. 251. The Government provided partial observations in a communication dated 11 May 2004.
3. 252. Cambodia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). It has not ratified the Workers’ Representatives Convention, 1971 (No. 135).

A. The Committee’s previous recommendations

1. 253. In its 332nd Report, the Committee made the following recommendations:
2. (a) The Committee requests the Government, in cooperation with the FTUWKC and the employer, to take appropriate steps to ascertain the identity of the complainant (Secretary-General of the FTUWKC) dismissed at the INSM Garment Factory and, once this is done, to ensure that this person is reinstated, and enjoys full legal protection against acts of anti-union discrimination or, if such reinstatement is not possible, that this person is paid adequate compensation. The Committee requests the Government to keep it informed of developments in this respect.
3. (b) The Committee requests the Government to provide its observations regarding the dismissals of the President and 30 other union members of the FTUWKC at the INSM Garment Factory, after having obtained the relevant information from the employer. The Committee urges the Government to ensure, in cooperation with the employer concerned, that the workers concerned are reinstated and enjoy full legal protection against acts of anti-union discrimination or, if reinstatement is not possible, that they are paid adequate compensation in conformity with Conventions Nos. 87 and 98 both ratified by Cambodia. The Committee requests the Government to keep it informed of developments in this respect.
4. (c) The Committee requests the Government to provide it with the court decision concerning the dismissal of Miss Muth Sour at the Top Clothes Garment Factory. If the dismissal resulted from her trade union activities, the Committee requests the Government to ensure that she is reinstated and enjoys full legal protection against acts of anti-union discrimination or, if reinstatement is not possible, that she is paid adequate compensation. The Committee requests the Government to keep it informed of developments in this respect.
5. (d) The Committee requests the Government to take appropriate measures so that the three union officials of the CCWADU dismissed at the Splendid Chance Garment Factory are reinstated and enjoy full legal protection against acts of anti-union discrimination or, if reinstatement is not possible, that they are paid adequate compensation in conformity. The Committee requests the Government to keep it informed of developments in this respect.
6. (e) The Committee reminds the Government that it can avail itself of the technical assistance of the Office.
7. B. The complainant’s new allegations
8. 254. In its communication of 28 October 2003, the complainant organization states that Ms. Chey Khunthynith, President of the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC) branch union at the Cung Sing Garment Factory in Phnom Penh has been dismissed because of her trade union activities. Ms. Khunthynith was elected as President of the local union (registered on 19 September 2002) and dismissed on 1 October 2002, because she had demanded that management respect the Cambodian Labour Code, in particular the provisions dealing with payment of wages, use of annual leave and seniority pay. The FTUWKC filed a complaint on 9 October 2002 to the competent authority which, on 26 February 2003, ordered her reinstatement. The company management ignored that order from the Ministry, which took no action to enforce its decision.
9. 255. The relevant ministerial order (Prakas 305) requires reinstatement in such situations but there are two problems of implementation. First, the Government does nothing effectively to enforce its reinstatement order; thus, while the law seems appropriate, the Government does not use it. Secondly, the fines in the law for firing union leaders are so small that factory owners are willing to ignore them.
10. C. The Government’s partial reply
11. 256. In its communication of 11 May 2004, the Government states that officials of the Department of Labour Inspection visited the Cung Sing Factory on 3 October 2002 to investigate the case and examine whether the dispute could be resolved. The factory manager told the inspectors that Ms. Khunthynith had been dismissed because she had falsified her date of birth in order to qualify for election as President. Ms. Khunthynith declared to the inspectors that she was actually 25 years old in 2002, as she was born in 1977. The factory management thereupon proposed that she be dismissed because she had stated in her application form that she was born in 1979, false statements being considered as serious offences under article 83 of the Labour Code.
12. 257. Ms. Khunthynith complained once more on 9 October 2002; labour inspectors visited the factory on 10 October and a conciliation attempt took place at the Department of Labour Inspection on 16 October. The manager still refused to reinstate her. The Department concluded on the basis of the investigation that the dismissal was illegal; on 23 February 2003, it issued Letter No. 348, requesting the manager to reinstate Ms. Khunthynith within 15 days, failing which the sanction provided for in article 382 of the Labour Law would be applied. The manager wrote to the Department on 5 March 2003, refusing the reinstatement. The Department sent another letter on 12 December 2003 ordering reinstatement within 15 days, which was declined by management on 26 December 2003. On 15 March 2004, the Department issued Letter No. 480 imposing a fine of 2,016,000 riels, to be paid by 30 March 2004. As the factory did not pay the fine, the Department filed a complaint in court.
13. 258. The Government’s communication does not contain any reply on the Committee’s previous recommendations and requests for information concerning the situation at the three other factories.

D. The Committee’s conclusions

1. 259. The Committee recalls that this complaint initially concerned various allegations of anti-union discrimination, harassment and dismissals at three private companies in the garment and textile industry in Cambodia (INSM Garment Factory, Top Clothes Garment Factory and Splendid Chance Garment Factory). A further complaint of a similar nature has now been filed concerning the dismissal of the President of the FTUWKC local branch at the Cung Sing Garment Factory, in Phnom Penh.
2. 260. While noting the explanations given by the Government concerning the efforts made by the labour inspectorate to conciliate the case, and the failed attempt to have the management reinstate Ms. Khunthynith, the Committee recalls once again that one of the fundamental principles of freedom of association is: that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment; and that protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. Such guarantee in the case of trade union officials is also necessary to ensure the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 724]. The Committee also recalls that necessary measures should be taken so that trade unionists who have been dismissed for activities related to the establishment of a union are reinstated in their functions if they so wish [see Digest, op. cit., para. 703]. The Committee therefore urges the Government to continue making all efforts to ensure that Ms. Khunthynith is reinstated in her post or in a similar position without loss of pay or benefits, and enjoys full legal protection against acts of anti-union discrimination. If the competent court finds that her reinstatement is not possible, the Committee requests the Government to ensure that she receives adequate compensation so as to constitute sufficiently dissuasive sanctions in respect of such acts of anti-union discrimination. The Committee requests the Government to keep it informed of the decision issued by the competent court in respect of the complaint filed by the Department of Labour Inspection, and to provide it with a copy of that decision as soon as it is handed down.
3. 261. The Committee deplores that, despite several reminders, the Government did not provide any reply concerning the other aspects of the case and its previous recommendations which it reiterates here. The Committee therefore urges the Government to submit its observations in respect of its recommendations concerning the situation at the following establishments: INSM Garment Factory; Top Clothes Garment Factory; and Splendid Chance Garment Factory.
4. 262. As regards the alleged insufficiency of the legislation to protect workers from anti-union discrimination, in view of the evidence adduced, the Committee cannot but note a discernible pattern in all the situations complained of in this case, i.e. repeated 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. Taking into account the repeated nature of similar complaints in the country, the Committee points out once again that protection against anti-union discrimination is insufficient if the legislation is such that employers can, in practice, on condition that they pay the compensation prescribed by law for unjustified dismissal, dismiss any worker, if the true reason is his trade union membership or activities [see Digest, op. cit., para. 707]. The Committee requests the Government rapidly to take legislative measures to ensure, through sufficiently dissuasive sanctions, that these principles are embodied in the legislation. The Committee reminds the Government that it can avail itself of the technical assistance of the Office in this regard.