Informe provisional - Informe núm. 401, Marzo 2023

1. 197. The complaint is contained in a communication dated 17 March 2022 submitted by the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) and its affiliate the Labor Rights Supported Union of Khmer Employees of Naga Hotel (LRSU). Supplemental information was provided via communications dated 28 September, 27 October and 2 December 2022 submitted by the LRSU, the International Trade Union Confederation (ITUC) and the IUF.
2. 198. The Government of Cambodia transmitted its observations in communications dated 2 June 2022 and 20 February 2023.
3. 199. 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 complainants’ allegations

1. 200. In their communication dated 17 March 2022, by way of background to the complaint, the complainants recall the observations of the Conference Committee on the Application of Standards and the Committee of Experts on the Application of Conventions and Recommendations on the shortcomings in the national Law on Trade Unions (LTU), particularly rights including the Most Representative Status (MRS) certification and the restrictions on the ability of union members to exercise their rights in the Arbitration Council (hereinafter “AC”) and their collective bargaining rights.
2. 201. The complainants, in a series of communications on 17 March, 28 September and 27 October 2022, allege the failure of the Government, in particular the Ministry of Labour and Vocational Training (MLVT), to ensure in law and in practice the right to freedom of association and collective bargaining. The complainants specifically present allegations of several violations such as anti-union dismissals and suspensions against NagaWorld (hereinafter “the enterprise”), a company wholly owned by NagaCorp Ltd (hereinafter “the parent enterprise”).
3. 202. The complainants recall that though the LRSU was formed in the year 2000, it failed to secure full union recognition for 21 years despite having 4,400 members out of a total of 8,000 workers employed at the enterprise. Although the LRSU was the only union in existence in the enterprise, it was denied the MRS certificate, in their view due to unjustifiable administrative burdens placed on it and a lack of transparency and due process. Consequently, according to the complainants, the management of the enterprise refused to engage in collective bargaining with the union. This response by management purportedly followed a pattern of selectively withdrawing recognition of the union and refusing to negotiate in good faith. Shortly after the LRSU demanded the right to represent their members who were targeted for redundancy and to engage in negotiations, the complainants state that the LRSU President, Ms Chhim Sithar, LRSU Vice President, Ms Sokha Chun, and LRSU General Secretary, Sokhorn Chhim were also issued redundancy notices.
4. 203. The complainants allege that acts of anti-union discrimination were carried out by the enterprise in retaliation for the LRSU demands to negotiate or collectively bargain, following similar patterns established in 2009, 2010, 2012, 2019 and 2021. They recall the previous case (Case No. 2783) examined by the Committee wherein the employer refused to comply with a decision of the AC calling for the reinstatement of trade union leaders dismissed in 2009 and 2010, and members in 2012, and further refer to the suspension in 2019 of Chhim Sithar as retaliation for a call to bargain collectively for wages, fully reinstating her only in January 2020 following prolonged strike action and international outcry. In the complainants’ view, this demonstrates a long history of trade union rights violations by the enterprise and the failure of the Government to ensure the protection of these rights.
5. 204. In April 2021, the management of the enterprise announced a plan to lay off 1,329 out of the 8,000 workers, 1,100 of whom were LRSU members, including the leadership. The announcement in April was made while the enterprise was voluntarily closed on 2 March 2021 due to COVID-19 and following a boycott from the union due to the refusal by the management to engage with them on these issues. While there was an initial bilateral negotiation between the enterprise and the LRSU in April 2021, there was no resolution. The complainants indicate that financial information had not been provided nor was neutral methodology employed to determine the workers to be laid off. The complainants therefore consider that the decision to make workers redundant was grounded in a decision to eliminate the union.
6. 205. The redundancies were announced when the enterprise reopened in May 2021 and the workers to be laid off received termination notices along with invitations to meetings with the management. The workers refused to attend the meetings, however, since the management did not allow them to have union representation. The complainants state that the non-attendance by such workers at the proposed meetings led to the unilateral claim by the enterprise that the terminations had been agreed upon and consequently, workers were entitled only to a lower lay-off amount than the amount they would otherwise receive for forced termination.
7. 206. As a result, 2,049 out of 3,975 workers signed a complaint dated 1 June 2021 and submitted it to the MLVT on 8 June 2021, citing four violations, namely that: (i) the redundancies were imposed unilaterally by the management without negotiations with the LRSU; (ii) LRSU members were not permitted union representation when summoned on an individual basis for meetings concerning their termination; (iii) LRSU members could not obtain information on the rationale or the criteria applied for their termination including, for example, seniority; and (iv) LRSU officers were added to the redundancy list after insisting on negotiations with the management. Subsequently, a mediation meeting was convened by the MLVT on 23 June 2021 where the complainants stated that the management did not engage in good faith and the MLVT supported them stating that the redundancy was a matter involving individual employees with no role for union or union representation.
8. 207. The MLVT’s refusal to recognize the LRSU’s right to represent its members in two administrative court hearings rendered the status of the LRSU and its office bearers as union representatives unclear. According to the complainants, this led to diminished benefits for union members who were rendered forcibly redundant, the continued retaliatory loss of jobs by LRSU officers and the overall weakening of union negotiations to protect fundamental rights in the context of the COVID-19 pandemic. Many union members were coerced into signing resignation letters due to their economic hardship and only 373 of the initial 1,329 workers facing termination continue to refuse the redundancy package. The complainants further state that the LRSU requested the MLVT and the enterprise for official recognition in a letter dated 12 July 2021, which was ignored without justification being provided.
9. 208. According to the complainants, this refusal to recognize the LRSU also meant that, in the AC proceedings, the employer was not obliged to recognize the union or to respond to any of the evidence concerning anti-union discrimination in the redundancy process. Without clarity on the representative status of the LRSU in the dispute settlement proceedings, the AC and the enterprise were thus able to ignore the arguments presented by union representatives concerning anti-union discrimination and rights violations in the mass redundancy. The complainants allege collusion between the enterprise and the Government and cite high-level government officials working in the security of the enterprise and that the CEO of the enterprise holds a government position. They indicate that the enterprise blocked the AC from issuing decisions regarding discrimination in choosing who to terminate and the correct compensation based on the claim that the AC had no purview since the issues were pending before the MLVT.
10. 209. In these circumstances, the LRSU conducted a secret ballot between 8 and 12 November 2021 to go on a lawful, peaceful strike to protest the lack of resolution of the demands previously made. The complainants state that the ballot resulted in an affirmative vote with 1,653 LRSU members voting and 97 per cent voting in support of the strike. Consequently, on 22 November 2021, the LRSU submitted its notice of strike titled, “Notice of peaceful strike in front of NagaWorld from December 18, 2021 until a solution is found”. The notice listed nine demands made to the enterprise with the Committee for the Settlement of Strikes and Demonstrations, the MLVT and Phnom Penh Municipal Hall (hereinafter “municipal authorities”) in copy. The demands included the reinstatement of the 373 workers who refused the redundancy settlements, reinstatement of the three trade union leaders who faced retaliatory inclusion in the redundancy list, wage increases, package recalculations, an end to disguised full-time internships and compliance with previously issued AC awards.
11. 210. The enterprise did not respond to the notice. The MLVT sought meetings with the LRSU on 3 and 14 December, but no resolution was reached. Subsequently on 15 December, LRSU representatives held three online consultations with nearly 2,000 union members who confirmed their intent to continue the strike. The complainants state that the municipal authorities also held a meeting with the LRSU on 17 December 2021, but no representative of the enterprise attended. During this meeting, municipal officials urged the LRSU to halt or delay the strike and to consent to both a bilateral meeting between the union and the municipal officials on 21 December 2021 and a tripartite meeting also including the enterprise on 27 December 2021. The complainants highlight that the terms for the proposed tripartite meeting as stipulated by the municipal officials were that the latter would speak on behalf of the workers and that the LRSU would not be permitted to advocate on behalf of its members.
12. 211. The complainants indicate that while the proposal to halt the strike was tabled before the members of the LRSU for a vote, it was overwhelmingly rejected. Hence, the strike began as originally and lawfully noticed on 18 December 2021.
13. 212. The Phnom Penh court of first instance however issued a provisional injunction on 16 December 2022, prohibiting the proposed strike and declaring striking workers liable for serious misconduct and subject to financial liability, a decision the complainants state was only released to the LRSU on 18 December 2021, after the commencement of the strike. The enterprise published the injunction via a mobile app to the employees, threatening that a continuation of the strike would violate the injunction. A copy of the injunction was then delivered to Chhim Sithar. The complainants inform the Committee that the MLVT subsequently issued a press release undermining the strike action, urging workers to halt the strike and for workers and the public to “avoid being swindled by dishonest characters whose intention was to cause instability in the company and public order”. The MLVT additionally stated, in a manner perceived to be a threat by the strikers, that since the strike risked public safety and security in the context of the COVID-19 pandemic, it would be shut down by municipal officials, while the complainants maintain that the strike was held in compliance with the World Health Organization (WHO) and Ministry of Health guidelines.
14. 213. According to the complainants, further meetings between the LRSU, the enterprise, MLVT and the municipal authorities to resolve the dispute were held on 21, 22 and 27 December 2021, but with no successful resolution.
15. 214. The complainants inform the Committee that: (i) on 31 December, 2021, 100 military officers with riot shields and truncheons arrived on military trucks at and surrounded the LRSU office while more than a dozen police officers, both uniformed and plain-clothed raided it, arresting around 10 workers; (ii) on 1 January 2022, the patrolling by military and police forces around the enterprise continued with approximately 100 security forces on-site; (iii) on 3 January 2022, three of those charged were released by the police after signing contracts, while six remaining detainees along with three new LRSU leaders (nine in total) were charged with incitement to commit a felony under articles 494 and 495 of the Criminal Code, a misdemeanour that is punishable with up to five years imprisonment. One of the nine detained was released on bail while the others remained in detention. The detained workers were made to undergo a 21-day quarantine in prison, much longer than regular detainees, and denied access to lawyers during this period. Appeals by the lawyers against their pretrial detention were dismissed by courts. Eight of the 11 detained workers were released on bail on 14 March 2022, upon the condition that they cease striking and encourage others to refrain as well.
16. 215. The complainants indicate that the strike nevertheless resumed with approximately 400 members of the LRSU assembled between the Parliament and one of the buildings of the enterprise. The area around the second building of the enterprise was blocked by military and police forces who carried shields. Seventeen strikers were arrested, including a pregnant worker who was later released on bail. The 16 remaining strikers remained in police custody at Phnom Penh.
17. 216. According to the complainants, on 4 January 2022, Chhim Sithar arrived at the strike venue and was arrested by plain-clothed officers. Sithar, along with two others (Sok Narith and Sok Kongkea), who were previously charged, were arrested and held at the Phnom Penh Municipal Police Commissariat.
18. 217. According to the complainants, on 5 February 2022, Cambodian authorities prevented several hundred strikers from moving to the strike site and ordered that they board buses to be taken for compulsory COVID-19 tests at a makeshift testing site. Police arrested and detained six LRSU leaders (three men and three women) and issued warrants for four more (women). On 15 February 2022, again using the excuse of COVID-19, government officials instructed striking workers to move from the front of NagaWorld to a location outside of Phnom Penh city – to Freedom/Democracy Park – the location designated for political actions and not appropriate for industrial disputes. The LRSU suspended the strike for ten days from 5 to 15 February 2022 in compliance with the quarantine mandated by the authorities. However, on 15 February 2022, which was the day the strike was to resume, the municipal authorities issued a notification prohibiting illegal demonstrations by current and former staff of the enterprise except at Freedom Park. On February 21, when the strikers arrived near NagaWorld, the police, supported by NagaWorld security, prevented them from approaching the casino. Authorities then forced all strikers onto a bus and took them to a newly opened quarantine centre on the outskirts of the city where workers were forced to sleep uncovered on the ground. The quarantine centre had no proper sleeping or bathing facilities. Strikers were given a statement to acquiesce to stop participating in the strike. None of the workers were released until they had completed a period of quarantine. From April 2022, the authorities bused workers to the outskirts of the city, allegedly dropping strikers near Phnom Penh Safari.
19. 218. The complainants inform the Committee that a new union was registered on 14 March 2022, the same day as the release on bail of 8 out of the 11 workers who remained detained. The complainants allege that the union was registered faster than is the norm and is a company union which is subordinate to the management, with a leader who is known to be an anti-union employee and has previously refrained from participating in union activities. The complainants further allege that the management of the enterprise invited workers to meetings individually and persuaded them to revoke their membership in the LRSU and to join the new union, a union which, according to the complainants, has not undertaken any activities since its formation.
20. 219. During this time, the complainants point out that the remaining 3 workers out of the 11 detained, were released on bail on 17 March 2022, following an LRSU announcement that there would be no negotiations until the release of all detainees. Subsequently on 18 March 2022, an unsuccessful conciliation meeting was held between the LRSU, the representatives of the MLVT and the enterprise, followed by second and third meetings held on 21 and 23 March respectively. The complainants state that the MLVT requested that the parties resolve the issue of reinstatement of 200 workers and recused itself from participating in the resolution process except to the extent of coordination. The MLVT informed the parties to the dispute, the enterprise and the LRSU, that failed negotiations would allow them the right to legal remedy before the courts.
21. 220. Following the three meetings, the complainants indicate that there were 14 unsuccessful conciliation meetings held in 2022: on 29 March; 6 and 22 April; 11, 18 and 27 May; 8, 22 and 26 June; 6 and 22 July; 18 August; 15 September; and 6 October, respectively, with another meeting scheduled for 27 October 2022. The complainants allege that the management wishes to terminate more workers and has therefore rejected a proposal tabled during conciliation for a worker exchange that allows employees who wish to leave their jobs, to leave with compensation in exchange for reinstating those that want to be reinstated.
22. 221. The complainants indicate that the LRSU held a leadership election in April 2022 with Chhim Sithar being re-elected president along with three new candidates for the other roles. They allege that the union application for registration submitted in early May, along with all the requisite documents, was rejected by the Department of Labour Disputes that operates under the MLVT. This rejection was due to the argument of the enterprise that the elected leaders as well as some of the voters in the election were former employees of the enterprise, which the Department held to contrary to the Labour Law. The LRSU objected via a letter and submitted the registration documents once again, arguing that all the voters were current employees since the dispute concerning their termination was unresolved.
23. 222. The registration was rejected a second time and the MLVT requested the enterprise, citing article 25 of the Trade Union Law (LTU) concerning responsibility for financial assets, to withhold union dues until the new leadership of the LRSU was “registered and legally recognized.” This led to the management of the enterprise informing the LRSU via a letter that it would be withholding union members’ contributions until the latter “acquires new leadership who are duly registered with and recognized by MLVT”. The LRSU countered that the provision does not explicitly stipulate that the employer may withhold union dues.
24. 223. Furthermore, the complainants inform the Committee that Chhimm Sithar received a death threat on 3 April 2022, communicated via text message to a relative of one of the representatives stating that, “if workers do not stop striking after the ILO’s DCM finishes, then on 5 April around 20 people would be arrested, some of whom would be killed”. Subsequently, the LRSU promptly informed the Office of the High Commissioner for Human Rights and other authorities regarding this communication.
25. 224. The complainants also point out that the prolonging of the strike by the enterprise in collusion with the Government significantly and adversely impacts the workforce both financially and emotionally. According to the complainants, 74 workers who decided to return to work beginning June 2022 have been systematically isolated from other employees and forced to undergo training at a centre located outside the enterprise where they are separated and called into individual meetings with the management to be pressured into resigning their LRSU membership. This, according to the complainants, is violative of articles 333 and 279 of the Labour Law, prohibiting employers from sanctioning workers for strike action and from anti-union discrimination.
26. 225. The workers who continued to strike attempted to reach the enterprise by foot on 27 June 2022 but were blocked by authorities who surrounded them without legal basis. In addition, all roads were blocked the following day leading to strikers standing behind barricades to continue their protest. The complainants add that members from other union federations began to increase their presence at the strike site in June in order to show support for the LRSU.
27. 226. The complainants allege that the authorities became more hostile and violent towards the strikers since February 2022, attacking and harassing them, causing injuries such as black eyes, bloody noses, broken bones and in one instance, a miscarriage. The violence decreased for a short period in June 2022 but accelerated once again when the authorities on 11 August 2022, attacked 17 workers resulting in sustained injuries. This was followed by an LRSU statement on 12 August 2022, condemning the violence. The UN Special Rapporteur on the situation of human rights in Cambodia observed the strike on 17 August 2022. This visit allowed strikers to approach the strike venue near the enterprise without any intervention by the authorities and the violence decreased. The complainants also allege that the CEO of the parent enterprise’s hotels, who is the son of the CEO of the parent enterprise, tried to smash the phone of a striker, throwing it to the ground on 30 September 2022.
28. 227. The complainants add that the enterprise has filed a formal complaint against 18 female strikers including Chhim Sithar alleging: breaking and entering; intentionally causing damage with aggravating circumstances; arrest and detention; and unlawful confinement. The complainants indicate that 6 of the 18 workers have been summoned individually to Court between 8 and18 October and all of them face potential fines and/or imprisonment.
29. 228. In its latest communication, the complainants indicate that Chhim Sithar was arrested on 26 November 2022 on arbitrary grounds of violation of bail conditions regarding international travel although she had previously travelled out of the country on two occasions without giving rise to judicial or police action. The arrest occurred upon her return to Cambodia from attending the 5th World Congress of the ITUC in Melbourne, Australia. The Government indicated that Chhim Sithar would be held in quarantine for 14 days following her travel while mandatory quarantine for COVID-19 was no longer required in the country. The complainants express concern at her detention in prison and request urgent intervention to secure her immediate, unconditional release along with all essential LRSU properties that were in her possession and seized at the time of the arrest.
30. 229. In conclusion, the complainants allege that ongoing cycles of arrest and imprisonment constitute a serious interference with civil liberties in general and trade union rights in particular both for those directly affected and a much broader number of workers impacted by the chilling effect. MLVT officials were complicit in strike disruption by continually using loudspeakers, playing recorded audio, and convincing the workers on strike to choose receiving compensation package at the MLVT office individually. LRSU’s demands are that workers who wish to be reinstated be reinstated, that the company recognize LRSU and bargain with the union in good faith, and that fair compensation be paid to the dismissed workers.

B. The Government’s reply

1. 230. The Government indicates that the disputes between the enterprise and its workers stem from the adverse impact of COVID-19 on the tourism, entertainment, and hotel sectors which necessitated the mass lay-off to secure the sustainability of the business and the employment of thousands of other workers. The Government states that the enterprise had no option but to terminate some employees; that the termination was compliant with national law; that the termination did not target LRSU activists or leaders and that such mass lay-off is under the control of the labour authorities. The Government clarifies that a mass lay-off is based either on the reduction in the activities of establishments or a reorganization envisaged by the employer and is not subject to approval by the MLVT, according to article 95 of the Labour Law. The law does not prioritise trade union leaders or members working in those sections affected by the redundancy plan. In the event that not all workers in a section are to be affected by a lay-off, the workers to be laid off would be selected based on criteria including seniority and professional ability.
2. 231. The enterprise informed the LRSU of the redundancy plan affecting 1329 workers in 12 sections. It convened a meeting with workers’ representatives for discussion in this regard, which 373 of the abovementioned 1329 workers rejected. Subsequently, a team from the Committee for Settlement of all Strikes and Demonstrations or the Strike/Demonstration Settlement Committee was dispatched to settle the dispute at the enterprise level before the case was brought before the Ministry. On behalf of the Government, the MLVT monitored the case and ensured that the enterprise followed the applicable procedures during the mass lay-off and paid the due compensation mandated by law. The Government states that most of the 1329 workers who were laid off, excluding 373 workers, accepted the severance pay since the calculation of benefits was accurate.
3. 232. As regards the complaint by the LRSU to the MLVT dated 1 June and received on 8 June 2021, the Government indicates that there were five demands made to the enterprise by workers’ representatives including that the enterprise: (i) cease its redundancy plan; (ii) stop all acts of intimidation against employees during the proposed individual meetings; (iii) provide severance pay pursuant to labour law for employees terminated at the end of 2020; (iv) continue providing seniority indemnity and payment for all employees; and (v) duly implement health measures at the workplace in accordance with the WHO and the Ministry of Health guidelines to prevent COVID-19 at the enterprise.
4. 233. Upon receipt of the complaint, the MLVT issued a letter to certify 9 workers, including Chhim Sithar, who were the legal representatives proposed by the affected workers to settle their collective labour dispute. The Government states that the officials in charge commenced the conciliation procedure in accordance with national labour law which allows for the submission of additional information by the disputing parties. The initial conciliation meeting was postponed from 23 June to 30 June 2021 at the request of the parties. Settlement was achieved on one disputing issue (demand 5).
5. 234. The four remaining points of dispute were forwarded to the AC on 2 July 2021. During the proceedings, the disputants selected their respective arbitrators and opted for a non-binding arbitral award which cannot be enforced by law upon an objection being raised by either party to the dispute. The arbitral panel of three arbitrators held two subsequent hearings with the full participation of both disputants. The Government elucidates that the AC is an independent quasi-judicial body which is not subject to the supervision of any institution including the MLVT. Any continuance or suspension of hearings before the AC is exclusively at its discretion without any intervention by the MLVT.
6. 235. Regarding the request to recognize LRSU representatives, the Government indicates that 2,049 workers signed the request (via thumbprint) for the recognition of nine union leaders including Chhim Sithar as workers’ representatives of the LRSU. Consequently, the conciliator issued a letter dated 30 June 2021 to recognize the nine union leaders, thereby granting the request. The Government refutes the allegations that the non-recognition of the LRSU as the most representative impeded their right to freedom of association and states that the recognition mechanism allows workers’ representatives the right to represent all union members. The Government adds that the right to represent union members stems from the request of the workers to be represented.
7. 236. Further, the Government states that the AC, on 10 September 2021, rendered a non-binding arbitral award . The AC refused to rule on the first two demands made by the LRSU and ruled in favour of the affected workers for the third and fourth demands. The award was challenged by LRSU on 17 September 2021. This was prior to the issuance of the notice of the strike, the objective of which is to implement the award of the AC that was already challenged. It is highlighted that a challenge to a non-binding award by a disputing party pre-empts its enforcement under national Labour Law.
8. 237. Pursuant to this, the MLVT received two complaints from the LRSU on 23 September and 12 November 2021 respectively. The first called for the reinstatement by the enterprise of the 373 workers from the previous dispute in addition to new demands not previously raised during conciliation. The second contained three additional demands.
9. 238. In light of the fact that the previous award (No. 012/21) was rendered unenforceable due to the objection filed by the LRSU, the MLVT advised them to approach the courts for relief. Additionally, the LRSU was informed that new disputing points not previously conciliated must initially be raised as a complaint in accordance with the procedure established by the Labour Law. The Government highlights that the LRSU is yet to approach the courts for a remedy to the dispute already arbitrated by the AC.
10. 239. The Government indicates that the LRSU notified the enterprise of the decision to strike (with the MLVT in copy) without the prior exhaustion of the labour dispute settlement procedures prescribed by law. The notice of strike issued on 22 November 2021 contained four new issues in addition to the five issues previously raised before the AC. The Labour Law mandates that an issue must first be conciliated by the MLVT and arbitrated by the AC before the right to strike can be exercised regarding that issue. In addition, the right to strike can only be exercised if the AC fails to render a decision in a dispute raised before it within the timeframe prescribed by law and when the non-binding award has been objected to. Considering that the LRSU did not comply with procedures of the dispute settlement mechanism, the Government maintains that they had no right to strike.
11. 240. This was reaffirmed by the Phnom Penh court of first instance in its ruling dated 16 December 2021, which indicated that the collective labour dispute at the enterprise is to be settled by the AC with new points of contention not previously raised before the AC not subject to strike under the Labour Law. The Court declared the proposed strike illegal since the new demands were not raised in a manner compliant with the procedure established by law. The Government states that the terminated workers continued their strike despite the court ruling and demanded the nine points in their notice. This resulted in the arrest of the participants of the illegal strike both for disturbance to public order and security and for not respecting the preventive measures adopted by the Government during the COVID-19 pandemic. The number of strikers arrested total eleven.
12. 241. The Government informs the Committee that the MLVT has been strongly committed to the peaceful settlement of the dispute and hosted five meetings on 18 December 2021. Further, it conciliated the dispute per request in accordance with applicable law on 18 occasions in addition to calling on the 305 remaining workers to settle the dispute.
13. 242. As regards the release of the detained strikers, the MLVT received letters dated 12 March (from 8 strikers) and 15 March 2022 (from a few others) requesting intervention through the provision of legal support to secure their temporary release pending trial. In the letters, the union workers undertook to cooperate with the authorities; adhere to COVID-19 prevention measures and refrain from gathering or protesting in a manner that affects public order, peace, or security. Therefore, the MLVT sent two letters dated 14 March and 15 March 2022 respectively, to the Ministry of Justice (MoJ) requesting the latter for consideration. Following this, the MoJ then requested the Phnom Penh court to consider the temporary release of the detained strikers. Subsequently, the court decided, at its discretion, to release the 11 strikers subject to their being placed under judicial supervision in accordance with the Code on Criminal Procedures of Cambodia.
14. 243. Regarding the rejection of the application for the registration of new LRSU leadership, the Government indicates that the application, received on 9 May 2022, by the Department of Labour Disputes under the MLVT, violated both article 4 of the LTU and article 9 of the LRSU statute since some of the newly elected leaders and voters were former employees of the enterprise at the time of the election. The MLVT issued a letter dated 6 June 2022, in accordance with articles 12 and 16 of the LTU, informing the LRSU of the delay in the registration and requesting the rectification and resubmission of the documents within 30 days. The Government points out that the MLVT is yet to receive the rectified documents from the LRSU.
15. 244. The Government refutes the allegations regarding the lack of independence of the new trade union registered on 14 March 2022. The MLVT is bound by law to ensure the independence of trade unions from employers, and any trade union that is not independent is liable to lose its registration per the LTU. According to the Government, unfounded allegations threaten the solidarity and unity of the workers movement in the country. It therefore requests the complainants to provide evidence to substantiate the allegations in this regard.
16. 245. The Government clarifies that Chhim Sithar was arrested due to a breach of the conditions of her provisional release pending trial. Article 230 of the Code on Criminal Procedures provides that a person under court supervision shall secure the prior permission of the court before undertaking foreign travel. This being a standard term in the court’s verdict during provisional release from detention, ignorance is not a justification. The Government informs the Committee that her case is to be heard by the Phnom Penh court of first instance on 21 February 2023.
17. 246. The Government indicates that the MLVT has exhausted all collective labour dispute mechanisms and continues to facilitate the dispute through the existing mechanism of dispute settlement by the Strike/Demonstration Settlement Committee, which is a coordinating system that does not have the power to adjudicate. The disputants have requested and held 23 meetings aimed at arriving at a solution. With regards to the compensation to be provided to the terminated workers, the MLVT has facilitated the calculation in accordance both with the law and the Arbitral Award to ensure accurate benefits for the terminated workers. The enterprise has compromised and implemented the new agreed calculation and started to reimplement seniority indemnity in 2021.Consequently, as of 4 February 2023, seventy per cent of the former workers have agreed to receive the termination benefits offered and have registered with the National Employment Agency of the MLVT. The Ministry undertakes to facilitate negotiations for the 108 remaining disputants.
18. 247. Under these circumstances, the recourse available upon the exhaustion of other remedies, by way of settlement of the labour dispute through labour inspection and the AC, is to approach the courts via article 385 of the Labour Law. As regards the arrests, the Government has indicated to the ILO that this is in the hands of the judicial authorities which are independent in the country. However, the MLVT will do what it can to provide assistance at the request of the individuals, including through inter-ministerial support.
19. 248. According to the Government, the stand-off was not caused by the MLVT but rather by the lack of willingness of the parties to bring the dispute before the appropriate court. Given that the enterprise has now brought the dispute to the court, the Government is awaiting the decision.
20. 249. The Government reaffirms its commitment to promoting, protecting and adhering to all duties and obligations stipulated in the relevant international labour Conventions to which it is a party.

C. The Committee’s conclusions

1. 250. The Committee notes that this case concerns allegations of retaliation, anti-union discrimination and dismissals, and arrest and detention against workers for having participated in strike action, in a context where the legislative framework inadequately ensures the effective recognition of freedom of association. Prior to the initiation of industrial action, the complainants indicate that, while the LRSU was formed in 2000, it has failed to secure full union recognition to date. The complainants assert that despite representing 4,400 workers of a total workforce of 8,000 at the Enterprise, and being the only union in existence, it was denied the most representative status (MRS) certificate, in their view due to unjustifiable administrative burdens and a lack of transparency and due process and this has impeded its capacity to fully defend its members.
2. 251. The complainants allege that this situation enabled a context of anti-union discrimination where the leadership of the LRSU in 2009 and 2010, followed by all the activists in 2012, were terminated and the enterprise refused to comply with the AC order to reinstate them. In this regard, the Committee recalls its previous recommendations to the Government from 2011 in respect of the same enterprise that, while being requested to inform of the appeal lodged by the employer against the February 2010 decision of the AC ordering the reinstatement of four union leaders, which it expected would address the issue of the severance agreements found to be signed under duress, it requested the Government to take the necessary measures to seek their reinstatement without delay and ensure that the union leaders are immediately authorized to carry out their trade union activities in the company pending the conclusion of the appeals procedure.
3. 252. The Committee notes with regret that no further information was provided by the Government on the steps taken to follow up these recommendations and that it is now informed of further allegations of hindrances placed in the way of the LRSU, such as the allegations that Chhim Sithar, the president of LRSU, was suspended in 2019 pending termination as retaliation for a call for the right to bargain collectively for wages and only fully reinstated in January 2020 following prolonged strike action and international outcry.
4. 253. The Committee notes the further allegations of a series of violations of workers’ rights and freedom of association in the context of mass forced redundancy at the enterprise including that: (i) these redundancies were imposed unilaterally by management without negotiation with the union, with the exception of an initial bilateral negotiation between the enterprise and the LRSU in April 2021; (ii) LRSU union members were not permitted union representation when summoned on an individual basis for meetings concerning their separation; (iii) LRSU union members could not obtain information about the reasons for their selection for redundancy or the criteria applied; and (iv) three LRSU union officers were added to the redundancy list after demanding that management respect freedom of association and negotiate with them. Subsequently, the MLVT convened a mediation meeting at which the complainants allege that the management did not engage in good faith and the MLVT supported the enterprise stating that the redundancy was a matter involving individual employees with no role for union or union representation.
5. 254. As regards the mass redundancies, the Committee notes the Government’s indication that the dispute between the enterprise and its workers stems from the impact of COVID-19 on the tourism and entertainment sector which necessitated the mass lay-off to secure the sustainability of the business and the employment of thousands of other workers. The Government contends that the enterprise had no option but to terminate some employees; that the termination was compliant with national law; that the termination did not target LRSU activists or leaders; and that such mass lay-off is under the control of the labour authorities.
6. 255. On the specific point of mass redundancies, and while observing that it has insufficient information to determine the extent of consultation with the LRSU on the matter, the Committee recalls that it has always stressed the importance of engaging in full and frank consultation with trade unions when elaborating restructuring plans, since they have a fundamental role to play in ensuring that programmes of this nature have the least possible negative impact on workers [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1556].
7. 256. While recalling that the Committee can examine allegations concerning economic rationalization programmes and restructuring processes only in so far as they might have given rise to acts of discrimination or interference against trade unions, the Committee notes the complainants’ allegations that the MLVT refusal to recognize the LRSU’s right to represent its members in two administrative court hearings rendered its status and that of its office bearers as union representatives unclear and resulted in the weakening of the efforts made by the union to negotiate and defend the fundamental rights and protections in the context of the COVID-19 pandemic. It is further alleged that, in this context, many union members were coerced into resigning from the union due to their economic hardship, with only 373 of the initial 1,329 workers facing termination continuing to refuse the redundancy package. While the matter was taken to the AC, the complainants allege that the LRSU requests to the MLVT for recognition as most representative went without response, and this and the alleged collusion between the enterprise and the Government, led to the AC’s refusal to recognize the union or respond to any evidence regarding anti-union discrimination in the redundancy process.
8. 257. The Committee notes the efforts which the Government indicates it had taken to conciliate and monitor the matter and the settlement that had been achieved in relation to the demand for the enterprise to duly implement health measures at the workplace in accordance with the WHO and the Ministry of Health guidelines to prevent COVID-19, while the four remaining points were forwarded to the AC, an independent quasi-judicial body, on 2 July 2021. The Government adds that it is strongly committed to the peaceful settlement of the dispute and beyond these efforts, facilitated the calculation of the compensation in accordance with the law and the Arbitral Award to ensure accurate benefits for the terminated workers, leading to the enterprise implementing the new agreed calculation and starting to reimplement seniority indemnity in 2021.
9. 258. The Committee observes that these allegations occur in a context where the LRSU has not been granted MRS and has therefore not been recognized for collective bargaining purposes either by the Government or the enterprise and therefore has also not been able to represent its members before the AC. While the Committee has insufficient information to determine the representative status of the LRSU, it must recall that where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members [see Compilation, para. 1389]. Similarly, the Committee considers that workers should be able to be represented in their grievances, whether collective or individual, by the organization of their own choosing and trusts that the Government will ensure this in the future. The Committee urges the Government to provide detailed information on the current status of the LRSU’s request for MRS and, should they meet the legal requirements, to ensure that they are granted MRS without delay. It further requests the Government to provide information on the steps taken to ensure that the LRSU at least has the right to make representations on behalf of its members and to represent them in respect of their individual grievances.
10. 259. The Committee notes the complainant’s allegation that the lack of resolution of the demands through the process of the AC led the LRSU to submit a strike notice listing nine demands, including the reinstatement of the 373 workers who refused the redundancy settlements, reinstatement of the three trade union leaders who faced retaliatory inclusion in the redundancy list, wage increases, package recalculations, an end to disguised full-time internships and compliance with previously issued AC awards. According to the complainants, MLVT meetings in December did not result in resolution of the matter and the LRSU continued to be sidelined as representative of its members.
11. 260. The Committee notes the Government’s indication that, in respect of the first dispute, the AC refused to rule on the first two demands made by the LRSU and ruled in favour of the affected workers for the third and fourth demands while the LRSU challenged the award on 17 September 2021. The Government further indicates that it had received two additional complaints from the LRSU on 23 September and 12 November 2021 calling for the reinstatement by the enterprise of the 373 workers from the previous dispute and setting out three additional demands. According to the Government, given that the previous award was rendered unenforceable due to the objection filed by the LRSU, the MLVT had advised the LRSU to approach the courts for relief, something the union is yet to do, while the new disputed points should be first raised for conciliation in accordance with the law. The LRSU went ahead and notified the enterprise of the decision to strike without the prior exhaustion of the labour dispute settlement procedures prescribed by law.
12. 261. The Committee notes that it is in this context that both the complainants and the Government indicate that a provisional injunction was issued by the Phnom Penh court of first instance on 16 December 2022 prohibiting the proposed strike on the grounds that some of the demands had not yet been considered by the AC and declaring striking workers liable for serious misconduct and subject to financial liability.
13. 262. In these circumstances, the complainants allege a continuing series of steps taken by the Government aimed at disrupting the strike and activities of the trade union in severe violation of freedom of association throughout 2022, including: (i) maintaining that there was a risk to public safety and security in the context of the COVID-19 pandemic, forcing strikers into quarantine and busing them far away from the city centre; (ii) issuance of a press release stigmatizing the union action; (iii) sending in military officers with riot shields and truncheons to surround the LRSU office while more than a dozen police officers, both uniformed and plain-clothed, raided it; (iv) arresting a number of workers, detained in isolation and denied access to lawyers for 21 days, and only releasing those who signed a statement agreeing not to strike, (v) charging nine trade unionists, including Chhim Sithar, with incitement to commit a felony under sections 494 and 495 of the Criminal Code; and (vi) the authorities became more hostile and violent towards the strikers between February 2022 and June 2022, attacking and harassing them and causing injuries, with further violence resulting in injury once again on 11 August 2022, which then subsided after the visit of the UN Special Rapporteur on the situation of human rights in Cambodia six days later.
14. 263. The Committee notes with regret that the Government has not replied to the detailed allegations of the complainants in relation to the government, military and police interference in the industrial action. As regards the long period of pretrial detention (two months) of LRSU trade union leaders and members, the Government indicates that: (i) the matter is in the hands of the judicial authorities which are independent in the country; (ii) the MLVT sent two letters in March 2022 to the MoJ requesting the latter for consideration; (iii) the MoJ requested the Phnom Penh court to consider the temporary release of the detained strikers and (iv), the court subsequently decided, at its discretion, to release the 11 strikers subject to their being placed under judicial supervision in accordance with the Code on Criminal Procedures.
15. 264. The Committee recalls that it has always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests. The use of police for strike-breaking purposes is an infringement of trade union rights. 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. Penal sanctions should not be imposed on any worker for participating in a peaceful strike [see Compilation, paras 752, 931, 935, 954]. The Committee notes the Government’s reaffirmation of its commitment to promoting, protecting and adhering to all duties and obligations stipulated in the relevant international labour Conventions to which it is a party. The Committee therefore urges the Government to take the necessary steps for an independent investigation into the detailed allegations provided by the complainants in respect of the government, military and police intervention, violence and harassment and to transmit the outcome and ensure that the competent authorities receive adequate instructions so as to avoid any danger of violence in trying to control demonstrations. The Committee further notes that, while the LRSU members had been subsequently released, the charges remained pending against them. Recalling that no one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike [see Compilation, para. 971], the Committee requests the Government to ensure that all charges brought against LRSU leaders and members for participating in a peaceful strike are dropped. It requests the Government to keep it informed of the steps taken in this regard. The Committee further urges the Government to take the necessary measures to ensure an independent investigation is carried out into the various act of anti-union discrimination and interference alleged by the complainants to have been carried out by the employer since the beginning of the dispute and to keep it informed of the outcome.
16. 265. The Committee further notes the complainants’ allegations that the Government refused to register the re-election of LRSU officers in April 2022, including Chhim Sithar as president, on the grounds that the elected leaders as well as some of the voters in the election were former employees of the enterprise, while the dispute over termination remain unresolved. The Committee observes that the Government first affirms that the recognition of nine union leaders, including Chhim Sithar, was granted on 30 June 2021 and refutes allegations that the non-recognition of the LRSU as the most representative would have impeded their right to freedom of association. The Government adds in its later communication that the Department of Labour Disputes rejected the second application of 9 May 2022, as it violated article 4 of the LTU and article 9 of the LRSU statute since some of the newly elected leaders and voters were former employees of the enterprise at the time of the election. While, according to the Government, the MLVT had not received any rectification document following its informing the LRSU on 6 June 2022 of the need to resubmit within 30 days, the Committee notes the complainants’ allegations that the LRSU objected in writing and submitted the registration documents once again, arguing that all the voters were current employees since the dispute concerning their termination was unresolved, only to be rejected a second time with the MLVT this time requesting the enterprise to withhold union dues until the new leadership of the LRSU was “registered and legally recognized.” The Committee further notes in this context the allegations of recognition of a non-independent union at the enterprise by the Government in March 2022 and efforts by the enterprise to coerce workers to leave the LRSU and join the union while it has been totally inactive since its creation. On this allegation, the Committee notes that the Government confines itself to indicating that it is bound by law to ensure the independence of trade unions from employers, and any trade union that is not independent is liable to lose its registration per the LTU, without providing any further details on the registration of the union.
17. 266. As regards the recognition of the LRSU leaders in this context, the Committee recalls that workers and their organizations should have the right to elect their representatives in full freedom and the latter should have the right to put forward claims on their behalf [see Compilation, para. 586]. The Committee further recalls that the withdrawal of the check-off facility, which could lead to financial difficulties for trade union organizations, is not conducive to the development of harmonious industrial relations and should therefore be avoided [see Compilation, para. 690]. The Committee observes with deep concern that the non-recognition of the LRSU officers and the stoppage of the check-off facility effectively impedes the union’s ability to defend its members and could result in the entire eradication of the union. In these circumstances, and bearing in mind the allegations that the status of the voting members has yet to be finalised in light of the ongoing dispute and the long history of non-recognition and termination of LRSU leaders going back to the previous complaint in 2011, the Committee urges the Government to ensure that the April 2022 election of LRSU officers is duly recognized so that they may effectively defend the interests of their members and that the necessary steps are taken to ensure that members’ dues are duly transferred to the union. As regards the allegations that the enterprise filed a formal complaint against 18 female strikers including Chhim Sithar, the Committee requests the Government and the complainants to provide detailed information on the nature of the charges and the current status of these cases.
18. 267. Finally, the Committee notes with deep concern the allegations that Chhim Sithar was arrested once again on 26 November 2022 for having purportedly violated her bail conditions regarding international travel, following her return to Cambodia from attending the 5th World Congress of the ITUC in Melbourne, Australia while essential LRSU documents were seized. The Committee observes the Government’s affirmation that Chhim Sithar was arrested due to a breach of the conditions of her provisional release pending trial which is a standard term in court verdicts during provisional release and that her case is to be heard by the Phnom Penh court of first instance on 21 February 2023. The Committee recalls that penal sanctions should not be imposed on any worker for participating in a peaceful strike and that acts of confiscation and occupation of property of leaders of employers’ or workers’ organizations are contrary to freedom of association if they are taken as a consequence of their activities as representatives of such organizations [see Compilation, paras 954 and 293]. The preventive detention of leaders of workers and employers organizations for activities connected with the exercise of their rights is contrary to the principles of freedom of association and in all event should be limited to very short periods of time intended solely to facilitate the course of a judicial inquiry [see Compilation, paras 137 and 140]. Given that the initial charges brought against Chhim Sithar concerned her participation in peaceful industrial action, and deeply concerned at her continued preventive detention over two months, the Committee urges the Government to ensure her immediate and unconditional release and the restitution of any confiscated trade union property.
19. 268. Given that the allegations in this case refer to an enterprise, the Committee urges the Government to solicit information from the employers’ organization concerned with a view to having at its disposal the organization’s views, as well as those of the enterprise concerned on the questions at issue.