Informe provisional - Informe núm. 380, Octubre 2016

1. 118. The complaint is contained in a communication from the Cambodian Alliance of Trade Unions (CATU) dated 27 February 2015.
2. 119. The Government sent its partial observations in a communication dated 25 October 2016.
3. 120. 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. 121. In its communication dated 27 February 2015, the CATU denounces the refusal to register a trade union at the Bowker Garment Factory (Cambodia), Co. Ltd.; acts of anti-union discrimination following a strike, including dismissals, forced transfers, suppression of benefits and false criminal charges; the use of military force on striking workers; and alleges that section 269 of the Labour Act imposes excessive requirements for the determination and election of union leadership.
2. 122. In particular, the complainant indicates that in late 2013, in accordance with the Labour Act, 1997 and the Prakas No. 305, 2001, it began forming a trade union at the factory which employed around 2,000 workers and was a disclosed supplier of a brand. On 10 December 2013, a union election was held and on 12 and 16 December 2013, a notification for registration was communicated to the management of the factory (copies of notifications were provided by the complainant), informing them about the elected union leaders, but the notification was rejected on both occasions. An application for registration was then submitted on 23 January 2014 to the Ministry of Labour and Vocational Training (MLVT) but the complainant was informed by administrative officials from the Dispute Resolution Department that the process for registration of trade unions had been suspended, as the Ministry needed to prepare for new requirements and procedures.
3. 123. The complainant further states that on 26 December 2013, a nationwide strike broke out in the garment industry with more than 200,000 workers, including all workers from the factory, calling for an increase in the minimum wage to US$160 per month. According to the complainant, on 2 and 3 January 2014, the Government deployed the army on the striking workers in the capital’s major garment districts, shooting and killing five workers, wounding more than 40 and arresting 23 union leaders and striking workers, thus breaking the strike throughout the country. The complainant adds that violence against striking workers is a widespread occurrence in Cambodia and provides statistical information from the Community Legal Education Center (CLEC), according to which at least 102 trade union leaders and members were subjected to violence or serious injury in the last two years.
4. 124. The complainant further specifies that on 13 and 15 January 2014, four elected union leaders from the factory were informed by the administrative manager that they were terminated due to their role in the strike, although the right to strike is guaranteed under section 319 of the Labour Act, and were told to challenge the decision in court if they did not accept the termination of their employment. The dismissal concerned the following leaders:
   • – Mr Leok Sopheak, the elected President of the factory trade union, employed in the ironing department, was terminated on 15 January 2014; he had been employed under a three-month employment contract which expired on 30 December 2013 but the employer had not informed or required him to sign a new contract.
   • – Mr Dem Sokleang, the elected Vice-President of the factory trade union was terminated on 13 January 2014; he had been employed under a three-month employment contract which was due to expire on 28 February 2014.
   • – Mr Sam Kimsong, the elected Secretary of the factory trade union, employed in the ironing department, was terminated on 13 January 2014; he had been employed under a three-month employment contract which expired on 30 December 2013 but the employer had not informed or required him to sign a new contract.
   • – Mr Chhorn Chan, a prominent union activist of the factory trade union, employed in the packing department, was terminated on 15 January 2014; he had been employed under a three-month employment contract which was due to expire on 28 February 2014.
5. 125. On this subject, the complainant further indicates that: (i) following their termination, all four workers received a summons from the police, based on a complaint lodged by the factory, to attend questioning at the Ang Snoul police station on 17 January 2014; (ii) the complaint by the factory was erroneous and the four workers were never charged but, as is common practice in the judicial system, the complaint had not been dropped despite the lack of evidence; (iii) through legal assistance from the CLEC, the complainant requested the brand to intervene and ask for the reinstatement of the union leadership on the basis of sections 3 and 4 of the Prakas No. 305 and sections 12 and 279 of the Labour Act; (iv) the brand conducted an investigation into the allegations, after which the complainant received a message from the factory stating that the human resources manager was trying to reach out to the four workers to reinstate them; however, the workers were not reinstated; (v) an unsuccessful conciliation took place between the union and the factory on 11 February 2014, following which the factory attempted to pay off the workers; (vi) after more than a month of negotiations, the four trade union leaders and activists were reinstated on 24 February 2014 in an extrajudicial process with no binding agreement made between the parties; (vii) although reinstated, the workers were given very little work and no possibility to work overtime, leaving them with severely insufficient wages, while such overtime was widely available to other workers; (viii) the workers were given new positions in a secluded warehouse where they no longer had access to their members and since they were offered new contracts, they were concerned about losing seniority, not receiving back pay for the period during which they had been terminated and about being laid off since they did not have much work; and (ix) although this continued for several months it was recently remedied. Furthermore, the complainant indicates that the practice of dismissing trade union leaders and members following strikes and the practice of lodging erroneous criminal charges against them are widespread in Cambodia, as demonstrated by the statistical information from the CLEC: at least 1,554 trade union leaders and members were terminated illegally and at least 54 trade union leaders and members were arrested, summoned or criminally charged in the last two years.
6. 126. As to the registration question, the complainant indicates that despite the reinstatement of the trade union representatives, the employer refused to recognize the factory union claiming that no notification of registration had been issued to the management and that even if that had been the case, the union leaders had criminal records based on their summons for questioning, making them ineligible for union membership as per section 269 of the Labour Act, which provides that: “the members responsible for the administration and management of a professional organization shall meet the following requirements: … (3) not have been convicted of any crime”. The complainant specifies that even though the workers had not been convicted, the employer considered that the pending criminal case made the candidates ineligible for union election. After having contacted the MLVT on several occasions seeking further clarification on the union’s registration, the complainant was informed by Ministry officials in March 2014 that it needed to submit a comprehensive video clip of the election as well as individual photos of each and every member submitting their election ballot. In the complainant’s view there is no legal provision requiring to submit such documentation but it became widespread practice indicative of the Government’s intention to thwart independent union activity. The complainant indicates that the MLVT has not yet issued a certificate of registration.
7. 127. With regard to registration, the complainant further alleges that section 3 of the Prakas No. 305, which requires that the employer be duly informed of the candidacy to a leadership position by any reliable means, is manipulated by the employer and condoned by the Government to the extent that notification amounts to authorization. It also indicates that section 269 of the Labour Act imposes excessive external controls over the unions’ ability to determine and elect its own leadership as it requires that anyone with a leadership or management position in a union cannot have been convicted of any criminal offence, regardless of the type or severity of the offence. According to the complainant, such a requirement is disconcerting particularly in light of the recent politically motivated conviction of 25 workers and human rights activists, demonstrating the Government’s control over the judicial system.
8. 128. The complainant claims that the case illustrates the violation of Article 2 of Convention No. 87 and Articles 1(1) and 2(1) of Convention No. 98. and, therefore, urges the Committee to direct the Government to inquire into the matter of non-registration of the factory trade union and the wider consequences of the misapplication of the aforementioned policies, specifically to: put an end to onerous requirements of photo and video evidence of union elections being used as a barrier to union registration; ease trade union registration of all independent trade unions; put an end to the manipulation of the judiciary and anti-union practices, including false criminal charges; and respect the right to strike and put an end to violence against trade union leaders, members and striking workers.

B. The Government’s reply

1. 129. The Government’s states that Cambodia fully recognizes the right to freedom of association which is highly guaranteed, protected and promoted. In particular, the Government indicates that: (i) under section 266 of the Labour Act workers and employers have, without distinction whatsoever and prior authorization, the right to form professional organizations of their own choice; (ii) in order for a professional organization to enjoy the rights and benefits recognized by the Act, its founders must file their statutes and a list of persons responsible for the management and administration to the MLVT for registration, in line with section 268 of the Labour Act; (iii) in line with section 268(2) of the Labour Act, a trade union is automatically registered two months after the completion of the application, whereas section 12 of the new Act on Trade Unions provides that if an application is complete it will be automatically registered within 30 days of the date of application; and (iv) while according to section 269 of the Labour Act and Prakas No. 021 KKBV/BrK on the Registration of professional organizations, members in charge of administration and management must not have been convicted of any crime, section 10 of the new Act on Trade Unions no longer requires the criminal record of union leaders for registration.
2. 130. The Government strongly objects to the allegation that it refused to register the factory trade union in question, stating that its registration was not rejected but simply delayed due to an incomplete application, which does not mean that the Ministry restricted registration or created any obstacles for the exercise of the freedom of association. The Government further states that it has never had any policy to stop or postpone registration of new trade unions and registered 224 trade unions at the enterprise level, 11 federations, two confederations and one employers’ association in 2015. As of September 2016, the Ministry had registered 3,497 trade unions at the enterprise level, 103 confederations, 18 federations and 8 employers’ associations. According to the Government, the number of registered trade unions will further increase under the newly adopted Act on Trade Unions, as the law provides better conditions for establishment and registration.

The Committee’s conclusions

1. 131. The Committee notes that in the present case the complainant denounces the refusal to register a trade union at the Bowker Garment Factory (Cambodia) Co. Ltd.; acts of anti-union discrimination following a strike, including dismissals, forced transfers, suppression of benefits and false criminal charges; the use of military force on striking workers; and excessive requirements for the determination and election of union leadership in section 269 of the Labour Act.
2. 132. With regard to the alleged refusal to register a trade union at the factory level, the Committee notes the complainant’s indication that even though it formed a union and held a union election at the factory on 10 December 2013, two notifications for registration communicated to the management and informing them about the elected union leaders in line with section 3 of the Prakas No. 305 were rejected. The Committee also notes the complainant’s assertion that even after the trade union leaders had been reinstated following their dismissal for leading a strike, the factory management refused to recognize the union claiming that no notification of registration had been issued to the factory and that even if that had been the case, the union leaders had criminal records based on their summons for questioning by the police and a pending criminal case and that, therefore, they were ineligible for union membership as per section 269 of the Labour Act. According to the complainant, section 3 of the Prakas No. 305, which requires that the employer be duly informed of the candidacy to a leadership position by any reliable means, is thus manipulated by the employer and condoned by the Government to the extent that notification amounts to authorization. Furthermore, the Committee notes the complainant’s indication that an application for registration was submitted to the Ministry of Labour and Vocational Training but that administrative officials from the Dispute Resolution Department informed the complainant that the process for registration of trade unions had been suspended as the Ministry needed to prepare for new requirements and procedures. The Committee notes the complainant’s statement that after having sought further clarification at the Ministry concerning the delay in registration, in March 2014, Ministry officials explained that the complainant needed to submit a comprehensive video clip of the election as well as individual photos of each member submitting the election ballot. The complainant considers that the Ministry’s request is indicative of the Government’s intention to thwart independent union activity as there is no legal provision requiring submission of such documentation and the MLVT has not yet issued a certificate of registration.
3. 133. In this regard, the Committee notes the Government’s strong objection to the allegation that it had refused to register the factory trade union in question and its indication that the registration was not rejected but delayed due to an incomplete application, which does not mean that the Government created obstacles to registration and freedom of association. The Committee also notes the Government’s indication that it has never had a policy to obstruct or postpone trade union registration and had in fact registered a large number of trade unions at different levels in 2015, a number which should further increase with the adoption of the new Act on Trade Unions which provides better conditions for establishment and registration. The Committee also notes that the Government states that section 10 of the new Act on Trade Unions no longer requires the criminal record of union leaders for registration.
4. 134. In light of the information provided by the complainant and the Government, the Committee notes with concern that although more than two years have passed since the creation of the trade union and the election of its leaders, the trade union has not yet been registered and has encountered significant hurdles from both the employer and the MLVT in this regard. The Committee observes on the basis of the information provided by the complainant that in order to enable registration of the trade union, two notifications about the election of trade union leaders had been sent to the employer in line with section 3 of the Prakas No. 305 but both were rejected by the management. Recalling that section 3 of the Prakas No. 305 provides that: “Any workers belonging to a union who run for a leadership position in that union shall enjoy the same protection from dismissal as a shop steward. This protection begins 45 days prior to the election and ending, if she/he is not elected, 45 days after the election. To this end, the employer must be duly informed of the candidacy by any reliable means. However, the employer shall only be required to comply with this provision once per each election of union leaders”, the Committee observes that the notification required by section 3 of the Prakas No. 305 is aimed at ensuring effective protection of candidates for trade union office rather than an authorization by the employer and regrets that the Government did not take the necessary protective action in this regard. The Committee urges the Government to take all necessary measures to ensure in the future that the notification requirement does not amount to a requirement for authorization by the employer to create a trade union or is not otherwise misused to halt trade union formation or restrict workers’ rights to elect their officers freely.
5. 135. The Committee also notes, as indicated by the complainant, that the factory management subsequently claimed that the trade union leaders had criminal records based on a pending criminal case as well as their summons for questioning by the police – occurring after their notification of the trade union election – which would prevent them from being eligible as union representatives under section 269 of the Labour Act. On this point, the Committee understands that despite the summons for questioning the concerned workers were never charged and there is, therefore, no pending criminal case against them; and moreover, the workers have not been criminally convicted. Furthermore, the Committee wishes to emphasize that conviction on account of offences the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the exercise of trade union functions should not constitute grounds for disqualification from holding trade union office, and any legislation providing for disqualification on the basis of any offence is incompatible with the principles of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 422]. In this regard, and further bearing in mind the complainant’s concern that section 269 of the Labour Act imposes excessive external controls over the unions’ ability to determine and elect their own leadership as it prohibits anyone convicted of any criminal offence, regardless of the type or severity of the offence, from holding a leadership or management position in a union (a requirement that the complainant notes is particularly disconcerting in view of the recent allegedly politically motivated conviction of 25 workers and human rights activists), the Committee observes that the Committee of Experts on the Application of Conventions and Recommendations has repeatedly requested the Government to amend this provision so as to narrow its scope to convictions which would be prejudicial to the aptitude and integrity required for trade union office. While noting the Government’s indication that the criminal record is no longer a required document for trade union registration in the new Act on Trade Unions adopted on 4 April 2016, the Committee observes with concern that section 20 of the new Act provides that “leaders, managers and those responsible for the administration of unions at the enterprise or establishment shall meet the following requirements: [… m]ake their own declaration that they have never been convicted of any criminal offence”. The Committee urges the Government, in consultation with all social partners concerned, to review these provisions and take all necessary steps to ensure that the law does not infringe the above principle, and to report back on any measures taken in this regard.
6. 136. Observing on the basis of the information provided by the Government that the new Act on Trade Unions and the Labour Act have different approaches to certain issues regarding freedom of association, the Committee requests the Government to provide information in this respect, including on the relationship between these laws, to the Committee of Experts on the Application of Conventions and Recommendations, to which it refers the legislative aspects of this case.
7. 137. The Committee further notes that while it can be observed from the documentation provided by the complainant that the MLVT had suspended the issuance of registration certificates at the time pending the adoption of the new Act on Trade Unions stating that it had to prepare for new requirements and procedures, which resulted in considerable delays in registration, the Government indicates that there was no policy to obstruct trade union registration as demonstrated by the high numbers of registered unions in 2015 and adds that the registration of the factory trade union in question was delayed due to its incomplete application, without, however, indicating what registration requirements were not satisfied. The Committee also observes that in March 2014, the Ministry requested the union to provide additional documentation in order to be registered, including video footage of the election and photos of each worker submitting the election ballot, which are not prescribed by the applicable legal provisions and regrets that the Government does not address this allegation. In these circumstances, the Committee wishes to recall that the right to official recognition through legal registration is an essential facet of the right to organize since that is the first step that workers’ or employers’ organizations must take in order to be able to function efficiently, and represent their members adequately. The formalities prescribed by law for the establishment of a trade union should not be applied in such a manner as to delay or prevent the establishment of trade union organizations. Any delay caused by authorities in registering a trade union constitute an infringement of Article 2 of Convention No. 87 [see Digest, op. cit., paras 279 and 295]. In light of these principles, the Committee is of the view that the requirement to provide video footage and photos of each worker participating in the election is an infringement on trade union rights and that this requirement together with the delay in registration hindered the free establishment of the factory union. Therefore, the Committee requests the Government to take the necessary measures to ensure the swift registration of the factory trade union in line with the mentioned principles and to keep it informed of any developments in this regard. The Committee trusts that the Government will avoid creating additional administrative obstacles to registration and will ensure that legislative reform or the issuance of implementing regulations does not have the effect of suspending or considerably delaying registration of trade unions in the future.
8. 138. With regard to the alleged use of military force on striking workers, the Committee notes the complainant’s allegation that on 26 December 2013, a nationwide strike broke out in the garment industry with more than 200,000 workers, including all workers from the factory, calling for an increase in the minimum wage and that on 2 and 3 January 2014, the Government deployed the army on the striking workers in the capital’s major garment districts, as a result of which five workers were shot and killed, more than 40 wounded and 23 arrested, and the strike was disrupted throughout the country. The Committee also notes the complainant’s indication that violence against striking workers is a widespread occurrence and that, according to the statistical information provided by the CLEC, at least 102 trade union leaders or members were subjected to violence or serious injury in the past two years. The Committee further observes that the allegations of violence against the striking workers in January 2014 have been examined by both the Committee of Experts on the Application of Conventions and Recommendations and the Conference Committee on the Application of Standards. In particular, in its latest observation, the Committee of Experts noted the Government’s indication that the strike action had turned violent and that the security forces had had to intervene in order to protect private and public properties, and to restore peace. It also took note of the fact that the Government had established three committees following the incidents: the damages evaluation committee, the Veng Sreng road violence fact-finding committee and the minimum wages for workers in apparel and footwear sector study committee. Recalling the conclusions from the 2016 Committee on the Application of Standards calling upon the Government to ensure that freedom of association can be exercised in a climate free of intimidation and without violence against workers, trade unions or employers, the Committee expresses its concern at the acts of violence on both sides and regrets that the Government did not take preventive measures to promote a resolution to the dispute through dialogue and collective bargaining before it could become violent. In this regard, the Committee recalls that the intervention of the army in relation to labour disputes is not conducive to the climate free from violence, pressure or threats that is essential to the exercise of freedom of association [see Digest, op. cit., para. 641]. The Committee further wishes to emphasize that while the principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike [see Digest, op. cit., para. 667], the authorities should resort to calling in the police in a strike situation only if there is a genuine threat to public order. The intervention of the police should be in proportion to the threat to public order and governments should take measures to ensure that the competent authorities receive adequate instructions so as to avoid the danger of excessive violence in trying to control demonstrations that might undermine public order [see Digest, op. cit., para. 647]. The Committee urges the Government to inform it without delay of any outcome of the investigations into the allegations of killings, physical injury and arrest of striking workers and of any measures taken as a result, particularly with regard to the three mentioned committees. The Committee requests the Government to promote in the future social dialogue and collective bargaining as preventive measures aimed at restoring confidence and peaceful industrial relations and trusts that the Government will ensure that the use of police and military force during strikes is strictly limited to situations where law and order are seriously threatened, in line with the mentioned principles.
9. 139. Regarding the allegations of anti-union practices, the Committee notes the complainants’ indication that on 13 and 15 January 2014, the administrative manager at the factory informed four elected union leaders from the factory that they were terminated due to their role in the strike of 26 December 2013, although the right to strike is guaranteed under section 319 of the Labour Act, and told the concerned workers to challenge the decision in court if they did not accept the termination of their employment. These dismissals concerned the following four trade union leaders who were all apparently employed on renewable three-month contracts: Mr Leok Sopheak, Mr Dem Sokleang, Mr Sam Kimsong and Mr Chhorn Chan. The Committee further notes the allegations that these four leaders suffered a series of measures of harassment and intimidation including a summons from the police based on an erroneous complaint lodged by the factory and, despite their reinstatement following an intervention from a brand which was sourcing from the factory, the workers were given very little work and no possibility to work overtime, leaving them with severely insufficient wages and were given new positions in a secluded warehouse where they no longer had access to their members. The complainants specify that, in these circumstances, they were concerned about losing seniority, not receiving back pay for the period during which they had been terminated and about being laid off since they did not have much work. The Committee further notes that while these precarious circumstances continued for several months, they are apparently now resolved. The complainant further alleges that the practice of dismissing trade union leaders and members following strikes and the practice of lodging erroneous criminal charges against them are widespread in Cambodia as demonstrated by the statistical information from the CLEC: in the last two years, at least 1,554 trade union leaders and members were terminated illegally and at least 54 trade union leaders and members were arrested, summoned or criminally charged.
10. 140. While welcoming the reinstatement of the union leaders and activists, as well as the rectification of their unfavourable circumstances for several months following their reinstatement, the Committee nevertheless considers that the situation described by the complainant raises serious concerns as to the climate for forming trade unions and freely exercising trade union activity. In this regard, the Committee recalls that when trade unionists or union leaders are dismissed for having exercised in a legitimate manner the right to strike, the Committee can only conclude that they have been punished for their trade union activities and have been discriminated against. In a case in which a trade union leader was dismissed and then reinstated a few days later, the Committee pointed out that the dismissal of trade union leaders by reason of union membership or activities is contrary to Article 1 of Convention No. 98, and could amount to intimidation aimed at preventing the free exercise of their trade union functions [see Digest, op. cit., para. 810]. Concerning the summons for questioning, the Committee wishes to emphasize that measures depriving trade unionists of their freedom on grounds related to their trade union activity, even where they are merely summoned or questioned for a short period, constitute an obstacle to the exercise of trade union rights [see Digest, op. cit., para. 63]. With regard to allegations of anti-union practices following reinstatement, the Committee points out that protection against acts of anti-union discrimination should cover not only hiring and dismissals, but also any discriminatory measures during employment, in particular transfers, downgrading and other acts that are prejudicial to the worker [see Digest, op. cit., para. 781]. The Government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt and impartial. In light of the circumstances of the case, as well as the alarming statistical information provided by the complainant, the Committee requests the Government to take the necessary measures to ensure that trade union members and leaders are not subjected to anti-union discrimination, including dismissal, transfers and other acts prejudicial to the workers, or to false criminal charges based on their trade union membership or activities, and that any complaints of anti-union discrimination are examined by prompt and impartial procedures.
11. 141. The Committee regrets that it had to examine this case without being able to take account of the observations of the enterprise concerned and requests the Government to obtain information from the enterprise on the questions under examination through the relevant employers’ organization. Finally, the Committee draws the Governing Body’s attention to the serious and urgent nature of this case.