Informe provisional - Informe núm. 355, Noviembre 2009

1. 327. The complaint is contained in a communication from the Building and Wood Workers’ International (BWI) dated 16 June 2008.
2. 328. As a consequence of the lack of a reply on the part of the Government, at its May–June 2009 meeting [see 354th Report, para. 9], 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 (1972), 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.
3. 329. 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).

A. The complainant’s allegations

1. 330. In its communication of 16 June 2008, the complainant states that its affiliate, the Cambodian Construction Workers Trade Union Federation (CCTUF), was established in 2002 and began to organize workers employed in the restoration projects at the Angkor Wat temples, in the city of Siem Reap. Workers at these restoration sites are employed for two to three years, a greater period compared to other construction workers working in the construction of hotels and the building of roads in Siem Reap. Despite their more “stable” employment, these workers began to organize at a number of the restoration sites to increase their wages, ensure safety standards and improve their working conditions.
2. 331. CCTUF member unions were formed in project sites operated under the Japanese Government Team for Safeguarding Angkor (JSA), Sophia University (SOPHIA), École française d'Extrême-Orient (EFEO), and other restoration sites. A trade union was also established to represent the workers hired to maintain the environment surrounding the Angkor Wat complexes by the Authority for the Protection and Management of Angkor and the Region of Siem Reap (APSARA). Additionally the CCTUF, which currently has approximately 3,500 members, had started to organize community-based workers and employees in hotel construction sites. The CCTUF unions have gained most representative status, as required by the Cambodian Labour Law, to represent their members in collective negotiations with their employers. At the same time, they were registered with the Ministry of Social Affairs, Labour, Vocational Training and Youth Rehabilitation (MOSALVY), based on the requirements set out in the Labour Law – which guarantees freedom of association and the right to strike, and provides for collective bargaining.
3. 332. Despite repeated attempts to gain union recognition and the presentation of various collective bargaining proposals, the CCTUF has been recognized only by the EFEO, with which it finally signed a collective bargaining agreement on 15 December 2006. The union has otherwise faced continuous discrimination from the APSARA, the Japan–APSARA Safeguarding Angkor Authority (JASA) – formerly known as JSA – and Angkor Golf Resort, and had filed several complaints to the MOSALVY citing violations of Cambodian labour laws at these various sites. However, the Government has failed to either respond to the union or resolve the disputes in an adequate and equitable manner.
4. 333. As concerns the APSARA, the complainant indicates that the latter is a for-profit, quasigovernmental agency whose mission is to build networks with the international community in order to protect, conserve, and increase the value of the Angkor Wat temple complexes. APSARA employs at least 250 workers to maintain the environment surrounding Angkor Wat. Its employees organized and established the Angkor Preservation Workers Trade Union in APSARA – a member of the CCTUF – on 27 May 2006. The union was registered and certified by the MOSALVY on 26 June 2006.
5. 334. On 7 August 2006, the CCTUF, on behalf of its member union, submitted a letter to the APSARA requesting a discussion on the latter’s practices that violated the Cambodian Labour Law, which included the intimidation of workers for joining the union and the failure to: provide workers with paid public holidays; establish a clear date for the payment of wages and pay wages in a timely fashion; provide 90-day maternity leave and benefits for all women workers; provide adequate working materials such as cleavers, plastic bags, rain-coats, sweepers, etc.; provide 18 days of paid annual leave for all workers who had been working for one year; cover the costs of work-related accidents; and provide paid special leave in case of the death of a family member.
6. 335. The complainant adds that after the APSARA failed to respond to the union’s request for discussion and negotiation, the union submitted another request for recognition and negotiations on 9 August 2006. Having again failed to receive a reply, the union submitted a complaint to the Siem Reap Provincial Labour Department on 5 September 2006, but received no response.
7. 336. On 21 December 2006, Mr Borin, a supervisor in the APSARA’s Department of Water and Tree Conservation, called all workers who had joined the union for a meeting, in which he informed them that should they want to continue working at the APSARA, they must disaffiliate from the union and resubmit their employment application forms by 28 December 2006. Mr Borin later requested one of his colleagues, Mr Pav, to list the names of all workers who “wanted to resign from the union”. On 22 December 2006, 14 union leaders and activists were unfairly dismissed by Mr Borin.
8. 337. In response, the CCTUF submitted a complaint to the Siem Reap Provincial Labour Department on 25 December 2006, to intervene and mediate negotiations between the union and the APSARA. On 22 March 2007, the union and the APSARA met with the Siem Reap Provincial Labour Department, and the APSARA verbally agreed to rescind the dismissal of any worker absent for five days and claim responsibility for workers injured on the job. However, the APSARA refused to reinstate the 14 dismissed workers dismissed in December 2006 for their trade union activities; it also refused to provide for paid public holidays and paid maternity leave, in accordance with the provisions of the Labour Law. The Provincial Labour Department mediator subsequently promised to submit the unresolved issues to the Arbitration Council.
9. 338. On 5 July 2007, the CCTUF submitted a complaint to MOSALVY seeking its intervention, as the case had not been sent to the Arbitration Council. However, MOSALVY decided to permit the Provincial Labour Department to continue seeking a resolution to the dispute. On 14 September 2007, the Provincial Labour Department held a conciliation meeting with the CCTUF and the APSARA, which failed to resolve the outstanding issues. The Provincial Labour Department contacted both the union and the APSARA for a mediation meeting on 25 October 2007. However, the APSARA failed to attend the meeting and has, to date, provided no response. Additionally, neither MOSALVY nor the Provincial Labour Department have pursued further measures in this respect, or forwarded the matter to the Arbitration Council. The complainant maintains that the failure by the authorities to forward the matter is a violation of both the Cambodian Labour Law and ILO Convention No. 87.
10. 339. The complainant indicates that on 28 February 2005, JSA terminated all employment contracts with trade union leaders and activists and completely closed its restoration project site. It reopened operations on 27 March 2006 under its new name – JASA – at a different restoration site, from Souprat to Bayon temple, while maintaining the country office in the original location, and the same financial support and operating director. Close to 90 per cent of the workers previously employed at JSA were rehired at JASA, with the exception of 16 union leaders and activists who were deliberately not re-employed.
11. 340. On 23 January 2007, the local union submitted a letter to JASA management, seeking reemployment for the 16 union leaders and activists who had formerly worked at JSA. On 8 February 2007 the CCTUF submitted another letter, and a third on 12 April 2007 to have the 16 union leaders and activists re-employed. The complainant states that as JASA’s full name (the Japan–APSARA Safeguarding Angkor Authority) indicates, the APSARA has some responsibilities delegated to it within JASA, and that the JSA/JASA management had used to deflect any responsibility by maintaining that the APSARA was responsible for human resources management, while it was responsible for technical assistance with UNESCO. The complainant indicates that on 2 March 2007, the JSA union’s certification expired. Even though the union wishes to renew its certification at JASA, holding new elections has proven difficult, as the leadership has not been rehired and members are unwilling to meet them as they recognize this would lead to the termination of their current employment contracts.
12. 341. With no response from JASA, the union filed a complaint with MOSALVY on 25 April 2007, as well as with the Siem Reap Provincial Labour Department on 30 August 2007. The CCTUF submitted a reminder letter that included all of the union’s pending cases – involving the APSARA, JASA, and the Angkor Golf Resort – to MOSALVY on 5 July 2007. MOSALVY sent a letter to the Provincial Labour Department, requesting the latter to resolve all the pending issues, but to date the union has not seen any resolution to its cases. The complainant contends that the Government’s failure to undertake measures in respect of the dismissed workers violates both the Cambodian Labour Law and ILO Convention No. 87.
13. 342. As concerns the Angkor Golf Resort, the complainant states that a union was established at the latter on 13 January 2007, with 95 workers from the site electing its leadership. The union was named the Construction Workers Trade Union of Angkor Golf Resort (CWTU) and was certified by the Ministry of Labor and Vocational Training on 25 April 2007. On 12 February 2007, the CWTU and the CCTUF submitted a letter to the employer requesting negotiations over several issues, including: wages, working hours, injury compensation, holiday pay, and workplace safety and health standards. The complainant states that the Angkor Golf Resort had failed to comply with the minimum standards concerning the above areas – as laid down in national laws and regulations.
14. 343. The complainant indicates that on 28 February 2007, the employer’s representative met with the union to negotiate on the union’s demands. The negotiations were unsuccessful, and on that same day Yun Sokha, the union’s President, was informed by her supervisor that her employment was terminated – without sufficient explanation as to the reason for her dismissal. On 7 April 2007, the management suddenly announced that it would suspend its operations and resume on 25 April 2007. On 27 April 2007, the management called all the workers who had not joined the union and those members who had agreed to disaffiliate from the union – approximately 55 workers in all – to resume work. Yun Sokha, the President of the union and Thy Sothea, Vice-President of the union along with 40 other workers were not rehired as they had refused to resign from the union.
15. 344. The complainant states that on 9 June 2007, the CCTUF filed a complaint to the Siem Reap Provincial Labour Department, seeking reinstatement for Yun Sokha, Thy Sothea and the 40 other trade unionists, but failed to receive a response. The CCTUF submitted a reminder letter on 5 July 2007, in which all the pending cases were mentioned, but all of those cases remain unresolved. The complainant concludes by contending that in all three cases – the APSARA, JASA and the Angkor Golf Resort – the Government has failed to adequately protect workers from violations of their freedom of association rights.
16. 345. Finally, several documents are attached to the complaint, including excerpts from the Cambodian Labour Law and copies of three Notifications issued by MOSALVY concerning the internal rules of enterprises, the provision of toilets, and the most representative status of enterprise unions. The notification concerning most representative status of enterprise unions, Prakas No. 305 of 22 November 2001, stipulates in section 9, that “the union having most representative status has the right to request the employer to negotiate a collective agreement, which applies to all employees represented by that union. In this case, the employer has the obligation to negotiate with the union.”

B. The Committee’s conclusions

1. 346. The Committee deplores that, despite the time that has elapsed since the complaint was first received, the Government has not provided any information, 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. 347. 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 expected to receive from the Government.
3. 348. 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. 349. The Committee further regrets that the failure of the Government to reply restricts the capacity of the Committee to examine any additional or other information relating to the enterprise which could have been brought forward by the relevant employers’ organization in the country.
5. 350. The Committee notes that the present case involves allegations of acts of anti-union discrimination, including unfair dismissals, at three workplaces. According to the complainant, on 21 December 2006, the APSARA, apparently after having ignored repeated requests from the union for negotiations, issued a statement demanding that its employees renounce membership in the union concerned, should they wish to retain their employment, and on 22 December 2006, dismissed 14 union leaders and activists. On 28 February 2005, JSA terminated its employment contracts with trade union leaders and activists and closed its restoration project site. It resumed operations on 27 March 2006, at a different restoration site under its new name, JASA, and retained 90 per cent of the workers previously employed at JSA – but did not re-employ 16 union leaders and activists. Finally, as concerns Angkor Golf Resort the complainant indicates that the President of the union concerned, Yun Sokha, was dismissed without sufficient reason on 28 February 2007 – the same day on which inconclusive negotiations with the union were held. The management also suspended its operations on 7 April 2007 and resumed operations approximately three weeks later, calling back only those workers who either had not joined the union or had agreed to renounce membership therein; Yun Sokha, union Vice-President Thy Sothea and 40 others who had refused to resign from the union were not rehired.
6. 351. The Committee further notes the complainant’s indications concerning the inadequacy of the relevant authorities’ responses to the matters noted above. With respect to the APSARA, according to the allegations the Siem Reap Provincial Labour Department attempted conciliation on 22 March and 14 September 2007; in both instances the APSARA refused to reinstate the 14 dismissed trade union leaders and activists. The APSARA also allegedly failed to attend a conciliation meeting scheduled for 25 October 2007, and neither the Provincial Labour Department nor MOSALVY have since undertaken further measures to resolve the dispute, including by forwarding it to the Arbitration Council. In respect of JASA, the CCTUF had on 25 April and 5 July 2007, addressed communications to MOSALVY, which in turn requested the Siem Reap Provincial Labour Department to take measures to resolve the outstanding issues, but, to date, the union has not seen any resolution to its cases. Finally, the complainant indicates that on 9 June and 5 July 2007, the CCTUF had submitted complaints to the Siem Reap Provincial Labour Department seeking reinstatement of the trade union leaders and members at the Angkor Golf Resort, but the Labour Department failed to respond to the union and there has been no resolution to the outstanding issues.
7. 352. The Committee observes that the present case depicts an insufficiency of laws and procedures to protect workers against acts of anti-union discrimination. As with other complaints against the Government, the present allegations repeat earlier and similar allegations in their depiction of an industrial relations climate 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 protect workers against such acts [see Case No. 2468, 344th Report, para. 436]. The Committee further recalls that, in another complaint against the Government before it, it had noted with deep concern the lack of an independent and effective judiciary and consequently urged the Government to take the necessary steps to ensure the independence and effectiveness of the judicial system, including through capacity-building measures and the institution of safeguards against corruption [see Case No. 2318, 351st Report, para. 250].
8. 353. In these circumstances, the Committee is bound to recall 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, 2006, paras 817 and 822]. In light of the above, the Committee considers the inadequacy of the authorities’ response, in particular their failure to submit the complainant’s cases to the Arbitration Council, to have been especially detrimental to the complainant’s ability to secure an effective remedy for the alleged violations. The Committee urges the Government, as it has in previous cases, to take steps without delay to adopt an appropriate legislative framework to ensure that workers enjoy effective protection against acts of anti-union discrimination, including through the provision of sufficiently dissuasive sanctions and rapid, final and binding determinations. The Committee invites the Government to further avail itself of the technical assistance of the Office in this regard.
9. 354. 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 urges the Government to immediately carry out a full and independent investigation into all the allegations in this case and, if they are proven to be true, to take the necessary steps to ensure that the trade unionists dismissed, or whose contracts have not been renewed, are fully reinstated without loss of pay. In the event that the reinstatement of the dismissed workers concerned is not possible for objective and compelling reasons, the Committee requests the Government to ensure that the workers concerned are paid adequate compensation which would constitute a sufficiently dissuasive sanction against anti-union dismissals. It requests the Government to inform it of the outcome of the investigation and of all measures of redress taken.
10. 355. Noting the complainant’s indication that the JASA union’s certification expired on 2 March 2007, and that holding new elections has proven difficult due to the termination of its leaders’ contracts and members’ unwillingness to meet them for fear of dismissal, the Committee requests the Government to take the necessary measures, including the issuance of appropriate on-site instructions, to ensure that the JASA union may hold elections, and that the workers may participate in these elections free from fear of dismissal or reprisal of any kind. It requests to be kept informed of developments in this regard.
11. 356. The Committee notes that according to the complainant the dismissals at the APSARA and the Angkor Golf Resort were precipitated by demands to engage in collective negotiations from the unions concerned – which were both certified as most representative by MOSALVY. The CCTUF submitted a demand to the APSARA requesting negotiations on 7 August 2006, approximately four months before the dismissal of 14 trade unionists. With regard to the Angkor Golf Resort, the latter held negotiations over conditions of work with the union concerned on 28 February 2007. The negotiations were unsuccessful and union President Yun Sokha was fired on that very day; approximately two months later the contracts of 41 other trade unionists, including the union’s Vice-President, were not renewed when the Angkor Golf Resort resumed operation. In this respect, the Committee recalls the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations. It is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover, genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties [see Digest, op. cit., paras 934–935]. Noting furthermore that Prakas No. 305 of 22 November 2001, lays down the obligation of the employer to negotiate with the union possessing most representative status, the Committee requests the Government to take the necessary measures to ensure that both the APSARA and the Angkor Golf Resort engage in goodfaith negotiations with their respective unions, and to keep it informed in this regard.