Informe provisional - Informe núm. 342, Junio 2006

223. The Committee has already examined the substance of this case on two occasions, most recently at its June 2005 meeting, where it presented an interim report to the Governing Body [see 337th Report, paras. 249-263, approved by the Governing Body at its 293rd Session].

1. 224. As a consequence of the lack of a response on the part of the Government, at its March 2006 meeting [see 340th Report, para. 10], the Committee launched an urgent appeal and drew the attention of the Government to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it may present a report on the substance of this case even if the observations or information from the Government have not been received in due time. To date, the Government has not sent its observations.
2. 225. 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. Previous examination of the case

1. 226. In its previous examination of the case, the Committee made the following recommendations [see 337th Report, para. 263]:
   • (a) The Committee requests the Government to make all efforts to ensure that Ms. Chey Khunthynith is reinstated in her post or in an equivalent position without loss of pay or benefits at the Cung Sing Factory, and that she 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 is paid 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 said decision as soon as it is handed down.
   • (b) The Committee urges once again the Government to provide its observations on its previous recommendations, as follows:
   • (i) 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 so as to constitute sufficiently dissuasive sanctions, in conformity with the above principles;
   • (ii) 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 so as to constitute sufficiently dissuasive sanctions in conformity with the principles of freedom of association and collective bargaining;
   • (iii) the Committee requests the Government to provide it with the court decision concerning the dismissal of Ms. 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 so as to constitute sufficiently dissuasive sanctions, in conformity with the above principles;
   • (iv) 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 so as to constitute sufficiently dissuasive sanctions, in conformity with the above principles.
   • (c) The Committee reminds the Government that it can avail itself of the technical assistance of the Office in order to assist with the drafting and enforcement of the appropriate legislation.
   • (d) The Committee requests the Government to keep it informed of developments on all the points above.

B. The Committee’s conclusions

1. 227. The Committee deplores that, despite the time that has elapsed since this case was first examined, the Government has not replied to the Committee's recommendations, although it has been invited on several occasions, including by means of an urgent appeal, to present its comments and observations on the case. The Committee strongly urges the Government to be more cooperative in the future.
2. 228. Under these circumstances, and in accordance with the applicable rules of procedure [see 127th Report, para. 17, approved by the Governing Body], the Committee finds itself obliged to present a report on the substance of the case without the benefit of the information which it had hoped to receive from the Government.
3. 229. The Committee recalls that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments on their side will recognize the importance of formulating, for objective examination, detailed replies concerning allegations made against them.
4. 230. 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 was filed concerning the dismissal of Ms. Chey Khunthynith, President of the FTUWKC local branch at the Cung Sing Garment Factory in Phnom Penh.
5. 231. Concerning the situation of Ms. Chey Khunthynith, the Committee in its previous examination of the case had noted 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 her. In the absence of further information from the Government, the Committee cannot but recall 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]. In addition, the Committee 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 firmly urges the Government to make 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 once again 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.
6. 232. The Committee deplores once again that, despite several reminders, the Government did not provide any reply concerning the other aspects of the case and its previous recommendations. The Committee therefore strongly 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.
7. 233. In its previous examination of the case, the Committee noted 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, and in view of the total absence of reply from the Government in this respect, the Committee recalls 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 firmly urges 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.