Informe provisional - Informe núm. 363, Marzo 2012

1. 378. The Committee has already examined the substance of this case on two occasions, most recently at its March 2011 meeting where it issued an interim report, approved by the Governing Body at its 310th Session [see 359th Report, paras 303–316].
2. 379. Since there has been no reply from the Government, the Committee has been obliged to postpone its examination of this case. At its November 2011 meeting [see 362nd Report, para. 5], 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.
3. 380. 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. Previous examination of the case

1. 381. In its previous examination of the case, the Committee made the following recommendations [see 359th Report, para. 316]:
   • (a) Noting the information provided by the Government that it has forwarded the case regarding the dispute involving the APSARA authority and the JASA organization, as well as the case concerning the Angkor Golf Resort, to the Arbitration Council, respectively on 22 December 2009 and 11 January 2010, the Committee requests the Government to keep it informed of any development in this regard and to supply a copy of the decisions of the Arbitration Council once adopted. The Committee expects that a decision will be taken without delay, through an impartial and independent procedure, and that if the proceeding demonstrates the anti-union character of the dismissals, that the dismissed union leaders and activists will be immediately reinstated without loss of pay or benefits. If, while noting the anti-union nature of the dismissals, the Arbitration Council considers that the reinstatement of the dismissed trade union leaders and activists is not possible for objective and compelling reasons, the Committee urges the Government to take the necessary measures to ensure that the workers concerned are paid adequate compensation which would constitute a sufficiently dissuasive sanction against anti-union dismissals.
   • (b) The Committee recalls that acts calculated to make the employment of a worker subject to the condition that he or she not join a union or shall relinquish their trade union membership constitutes a violation of Article 1 of Convention No. 98, and urges the Government to ensure that any infringement found in this respect will be sufficiently and appropriately sanctioned.
   • (c) As to the elections in the JASA union, the Committee once again requests the Government to take the necessary measures, including the issuance of appropriate on-site instructions, to ensure that the union may elect its representatives in full freedom, and that the workers may participate in these elections free from fear of dismissal or reprisal of any kind, and to indicate the steps taken in this regard and to inform it as to when the elections of the JASA union officers were held.
   • (d) Furthermore, the Committee once again requests the Government to take the necessary measures to ensure that both the APSARA and the Angkor Golf Resort engage in good faith negotiations with their respective unions, and to keep it informed in this regard.
   • (e) Finally, the Committee once again urges the Government 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 respect.
   • (f) The Committee draws the Governing Body’s attention to the serious and urgent nature of this case.

B. The Committee’s conclusions

1. 382. The Committee deeply regrets that, despite the time that has elapsed since the last examination of the case and given the seriousness of the alleged acts (acts of anti-union discrimination at three workplaces, including dismissals of trade union leaders and activists), the Government has not provided the further information requested, despite being invited to do so, including by means of an urgent appeal. The Committee urges the Government to be more cooperative in providing the further information requested.
2. 383. 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 further report on the substance of the case without the benefit of the additional information which it had hoped to receive from the Government.
3. 384. 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. 385. From the information available on the Arbitration Council’s website, the Committee notes that the Arbitration Council has issued awards with regard to the disputes involving the JASA authority and the APSARA authority, respectively on 22 January and 5 February 2010. In Case No. 177/09-JASA, the Arbitration Council considered that the workers’ case was not sufficient for it to determine that the enterprise did not recruit them due to anti-union discrimination and rejected their demand for re-employment. The Committee also notes that, in a dissenting opinion annexed to this award, one of the arbitrators underlined that the employer did not appear at the hearing or provide a proper reason for this failure, and did not provide any evidence to oppose the workers’ claim, and set out the reasons for considering that the evidence provided by the workers was sufficient to establish that anti union discrimination occurred. In this regard, the Committee wishes to recall that it may often be difficult, if not impossible, for workers to furnish proof of an act of anti-union discrimination of which they have been the victim, and that, besides preventive machinery to forestall anti-union discrimination, a further means of ensuring effective protection could be to make it compulsory for each employer to prove that the motive for the decision to dismiss a worker has no connection with the worker’s union activities [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 819 and 831]. In Case No. 175/09-APSARA, the Arbitration Council found that the authority did not comply with the procedure stipulated by the Labour Law when dismissing two of the workers concerned, and determined that the dismissal of another worker involved union discrimination. It therefore ordered the authority to reinstate the three workers concerned; it further decided that wages for paid holidays, which it did not provide in the past, from the date of their commencement until the date of their dismissal, should be back paid to them. The Committee requests the Government and the complainant to provide information on the implementation of the Arbitration Council’s award in relation to the APSARA authority, as well as on any appeal that may have been made to the courts by the workers in relation to the JASA arbitration decision.
5. 386. In the absence of any information from the Government on the other matters pending, the Committee deeply regrets that it must once again reiterate most of the recommendations it made when it examined this case at its meeting in March 2011 [see 359th Report, para. 316], and urges the Government to provide information without delay on the measures taken to implement these recommendations.