Observation (CEACR) - adoptée 2016, publiée 106ème session CIT (2017)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Cambodge (Ratification: 1999)

Autre commentaire sur C087

Observation

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The Committee notes the observations of the International Organisation of Employers (IOE), received on 1 September 2016, which are of a general nature. The Committee further notes the observations made by the International Trade Union Confederation (ITUC) received on 1 September 2016, which denounce that a large number of trade union leaders and activists have been charged with criminal offences for union activities since 2014, as well as that an increasing number of injunctions and requisition orders against trade unions and workers have been granted in labour disputes to restrict trade union activities and industrial actions. At least 114 injunctions and requisition orders have allegedly been granted since 2014, in particular in the garment industry and the tourism sector. The ITUC further protests against the persistent use of violence by the police against workers during protest actions. The Committee notes with concern the seriousness of these allegations and requests the Government to provide its comments on the observations submitted by the ITUC, and in particular detailed information on the specific cases mentioned.

The Committee takes note of the comments of the Government in reply to the previous allegations from the ITUC, Education International (EI) and the National Educators’ Association for Development (NEAD) of violence against trade unionists, harassing lawsuits against trade union leaders and activists, impediments to the registration of new independent trade unions, and intimidation against teachers joining trade unions (in particular police intimidation during the national Congress of the NEAD in September 2014). The Committee observes that, while it continues to object to the allegation of blockage to the registration of new trade unions, the Government indicates that most cases presented previously have been resolved through the existing legal procedures and that the competent authorities have been working closely with all the parties concerned to ensure full compliance with the national laws and regulations and the Convention.

Follow-up to the discussion of the Committee on the Application of Standards (International Labour Conference, 105th Session, May–June 2016)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in June 2016 concerning the application of the Convention by Cambodia. The Committee notes that, in its conclusions, the Conference Committee requested the Government to: (i) ensure that freedom of association can be exercised in a climate free of intimidation and without violence against workers, trade unions or employers, and act accordingly; (ii) ensure that the Trade Union Law is in full conformity with the provisions of the Convention and engage in social dialogue, and with the technical assistance of the ILO; (iii) ensure that teachers and civil servants are protected in law and practice consistent with the Convention; (iv) undertake full and expeditious investigations into the murders of and violence perpetrated against trade union leaders and bring the perpetrators as well as the instigators of these crimes to justice; and (v) ensure that the Special Inter-Ministerial Committee keeps the national employers’ and workers’ organizations informed on a regular basis of the progress of its investigations. The Committee also notes that the Conference Committee invited the Government to accept a direct contacts mission before the next International Labour Conference in order to assess progress. The Committee welcomes the Government’s acceptance of the direct contacts mission and trusts that the mission will take place in the near future.

Trade union rights and civil liberties

Murders of trade unionists. With regard to its long-standing recommendation to carry out expeditious and independent investigations into the murders of trade union leaders Chea Vichea, Ros Sovannareth and Hy Vuthy, the Committee had previously noted the Government’s indication that a special Inter ministerial Commission for Special Investigations was established in August 2015 to ensure thorough and expeditious investigations of these criminal cases. The Committee notes from the Government’s report that the Inter ministerial Commission for Special Investigations held its first meeting on 9 August 2016 and adopted measures with regard to its functioning, which include the use of electronic communication for reporting on progress made by each member of the Commission and regular meetings every three months to review progress made for each case. With regard to its previous recommendation that the Special Inter-ministerial Commission keeps the national employers’ and workers’ organizations informed on a regular basis of the progress of its investigations, the Committee notes from the conclusions of the Committee on Freedom of Association in its examination of Case No. 2318 (380th Report, November 2016) that a tripartite working group attached to the Secretariat of the Commission has also been established in order to allow the employers’ and workers’ organizations to provide information in relation to the investigation and to provide their feedback on the findings of the Commission. While the Committee duly notes the measures described, it must express its concern with the lack of concrete results concerning the investigations requested despite the time that has elapsed since the setting up of the Inter-ministerial Commission. Recalling the need to conclude the investigations and to bring to justice the perpetrators and the instigators of these crimes in order to end the prevailing situation of impunity in the country with regard to violence against trade unionists, the Committee urges the competent authorities to take all necessary measures to expedite the process of investigation, and firmly requests the Government to keep the social partners duly informed of developments and to report on concrete progress in this regard to the direct contacts mission.

Incidents during a demonstration in January 2014. In its previous observation, the Committee requested the Government to provide information on any conclusions and recommendations reached by the three committees set up following the incidents that occurred during the strikes and demonstrations of 2–3 January 2014 which resulted in serious violence and assaults, death, and arrests of workers as well as alleged procedural irregularities in their trial. In its report, the Government reiterates that the strike action turned violent and that the security forces had to intervene in order to protect private and public properties, and to restore peace. The Government further indicates that the three committees have been transformed and assigned more specific roles and responsibilities: (i) the Damages Evaluation Commission concluded that the total amount of damages is not less than US$75 million including damages on public and private properties in Phnom Penh and some other provinces; (ii) the Veng Sreng Road Violence Fact-Finding Commission concluded that the incident was a riot instigated by some politicians by using the minimum wages standards as the propaganda, and did not fall under the definition of a strike action under international labour standards since demonstrators blocked public streets at midnight, hurled burning bottles of gasoline and rocks at the authorities and destroyed private and public properties; and (iii) the Minimum Wages for Workers in Apparel and Footwear Section Study Commission was transformed into the existing Labour Advisory Committee, which is tripartite and advises on promoting working conditions including minimum wage setting. The Committee notes, however, that ITUC maintains that the committees established to investigate into the incidents were not credible, that an independent investigation into the events is still necessary and that those responsible for the acts of violence – which led to the death of 5 protesters and the wrongful arrest of 23 workers – must be held accountable. Noting the divergent views expressed by the Government and the ITUC on the handling of these incidents, the Committee must express its deep concern at the acts of violence which resulted in the death, injury and arrest of protesters following originally a labour dispute demonstration, and the absence of information from the Government in this regard. The Committee, recalling that the intervention of the police should be in proportion to the threat to public order and that the competent authorities should receive adequate instructions so as to avoid the danger of excessive force in trying to control demonstrations that might undermine public order, urges the Government to provide specific information, as well as the findings of the Commissions, with regard to the circumstances leading to the death, injury and alleged wrongful arrests of protesters, and on any measures taken as a result of the conclusions reached by the three mentioned Commissions.

Legislative issues

Law on Trade Union (LTU). In its previous observation, while noting that the Government had further revised the draft Trade Union Law and had submitted it to the Council of Ministers, the Committee expressed the hope that the draft law would be adopted in the very near future and would be in full conformity with the provisions of the Convention. The Committee notes the Government’s indication that the LTU was promulgated on 17 May 2016 and that during the drafting period from 2008 to 2016, a series of bipartite, tripartite, multilateral and public consultations have been conducted, and the technical comments of the ILO have been integrated in the final draft. The Government however points out that despite all efforts the Law does not provide full satisfaction to the social partners: (i) the employers are not satisfied with the minimum threshold before a trade union can be established; and (ii) the workers are dissatisfied with the scope of the law, which excludes civil servants. The Committee further notes the concerns raised by the ITUC on a number of provisions of the Law on Trade Union. The Committee requests the Government to provide its comments to the issues raised by the ITUC.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. Section 3 of the LTU: Scope of the law. Noting that under this section, the law covers all persons who fall within the provisions of the labour law, the Committee requests the Government to indicate how the judges of the judiciary and domestics or household servants, who are excluded from the scope of the labour law by virtue of its section 1, are fully ensured their rights under the Convention. Moreover, the Committee requests the Government to indicate whether workers in the informal economy fall under the scope of the LTU or how they are ensured their trade union rights under the Convention.

The Committee recalls that the right to establish and join occupational organizations should be guaranteed for all public servants and officials, irrespective of whether they are engaged in the state administration at the central, regional or local level, are officials of bodies which provide important public services or are employed in state-owned economic undertakings (see General Survey of 2012 on the fundamental Conventions, paragraph 64). The Committee notes the Government’s indication that civil servants appointed to a permanent post in the public service are ensured their freedom of association rights through section 36 of the Common Statutes for Civil Servants, and that teachers in particular are ensured these rights through section 37 of the Law on Education. The Committee understands that these provisions refer to the rights of association under the Law on Associations and Non-Governmental Organizations. Following its review of this law, the Committee considers that some provisions contravene freedom of association rights of civil servants under the Convention, by subjecting the registration of their associations to the authorization of the Ministry of Interior which is contrary to the right to establish organizations without previous authorization under Article 1 of the Convention. Moreover, this law lacks provisions recognizing to civil servants’ associations the right to draw up constitutions and rules, the right to elect representatives, the right to organize activities and formulate programmes without interference of the public authorities, or the right to affiliate to federations or confederations, including at the international level. Therefore, the Committee must once again urge the Government to take appropriate measures, in consultation with the social partners, to ensure that civil servants – including teachers – who are not covered by the LTU, are fully ensured their freedom of association rights under the Convention, and that the legislation is amended accordingly.

The Committee is making other comments on the LTU in a direct request and trusts that the Government will address them, in full meaningful consultation with the social partners and taking into account their observations, in order to bring the law into line with the provisions of the Convention. In this regard the Committee recalls to the Government the possibility to continue to benefit from the technical assistance of the Office. Moreover, the Committee requests the Government to report on the implementation of the LTU.

Application of the Convention in practice

Independence of the judiciary. In its previous observation, the Committee requested the Government to indicate any progress on the drafting of a guideline on the operation of the Labour Court and the Labour Chamber, and to provide information on the progress made in their establishment and operation. In its reply, the Government indicates that, with the technical assistance and financial support of the Office, the Law on Labour Procedure of the Labour Court is still in the drafting process. The Government has benefited from experiences from other countries, such as Singapore, Japan and Australia, and expects to consult the social partners on the draft law at the end of the year to reflect the needs for a labour dispute settlement system which is quick, free and fair. The Committee trusts that the Government will take all necessary measures to complete expeditiously the adoption of the Law on Labour Procedure of the Labour Court, in full consultation with the social partners, in order to ensure the effectiveness of the judicial system as a safeguard against impunity, and an effective means to protect workers’ freedom of association rights during labour disputes.

The Committee is raising other matters in a request addressed directly to the Government.