Observation (CEACR) - adoptée 2017, publiée 107ème session CIT (2018)

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 2017.

The Committee takes note of the comments of the Government in reply to the 2016 observations from the International Trade Union Confederation (ITUC), which denounced that a large number of trade union leaders and activists had 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 had been granted in labour disputes to restrict trade union activities and industrial action. The Government states that it is reviewing each case to determine its legal basis and verify whether it has been settled. As to cases under court proceedings the Government indicates that it will report on the outcome once it receives final judgments. The Committee further notes the observations made by the ITUC received on 1 September 2017 on matters examined in this comment, as well as alleging a number of violations of the Convention in practice, building on its previous observations and denouncing the criminalization of trade union activities through harassing lawsuits, arrests and long-pending trials before courts whose independence is questioned. The ITUC further alleges the use of short-term contracts to terminate employment of trade union leaders and members so as to weaken active trade unions. In addition, according to the ITUC, the zero draft of the Minimum Wages Law (2016) contains provisions which prohibit legitimate trade union activities. The Committee notes with concern the seriousness of these allegations and requests the Government to provide its comments on the 2016 and 2017 ITUC observations, in particular on the specific cases mentioned and the outcome of any pending court proceedings, as well as on the allegations of extended use of short-term contracts to undermine freedom of association, and of provisions in the draft law on the minimum wage criminalizing legitimate trade union activities concerning the discussion and setting of the minimum wage.

The Committee also takes note of the report of the direct contacts mission (DCM) that visited the country from 27 to 31 March 2017, following a request by the Conference Committee on the Application of Labour Standards in June 2016.

Follow-up to the discussion of the Committee on the Application of Standards (International Labour Conference, 106th Session, June 2017)

The Committee notes the discussion that took place in the Conference Committee in June 2017 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 violence against workers, employers and their respective organizations; (ii) provide the reports of the three committees charged with investigations into the murders of, and violence perpetrated against, trade union leaders to the Committee of Experts, and ensure that the perpetrators and instigators of the crimes are brought to justice; (iii) ensure that acts of anti-union discrimination are swiftly investigated and that, if verified, adequate remedies and dissuasive sanctions are applied; (iv) keep under review the Trade Union Law, closely consulting employers’ and workers’ organizations, with a view to finding solutions that are compatible with the Convention; (v) ensure that workers are able to register trade unions through a simple, objective and transparent process; (vi) ensure that teachers, civil servants, domestic workers and workers in the informal economy are protected in law and practice consistent with the Convention; (vii) ensure that all trade unions have the right to represent their members before the Arbitration Council; (viii) complete, in consultation with workers’ and employers’ organizations, the proposed legislation and regulations on labour disputes, in conformity with the Convention, so as to ensure that the labour dispute settlement system has a solid legal basis that allows it to fairly reconcile the interests and needs of workers and employers involved in the disputes; and (ix) develop a roadmap to define time-bound actions in order to implement the conclusions of the Conference Committee.

The Committee notes the Government’s indication that the Ministry of Labour and Vocational Training convened a tripartite meeting on 25 August 2017 to discuss actions to implement the conclusions of the Conference Committee and that, as a result, a roadmap was being prepared in consultation with the social partners. After the submission of its report the Government shared a draft roadmap with the ILO for its review and technical assistance. The Committee expects that, through comprehensive social dialogue and with the assistance of the ILO, the roadmap will soon be finalized to give full effect to the conclusions of the Conference Committee, and in this respect draws the Government’s attention to the matters raised below.

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 and Ros Sovannareth (in 2004) and Hy Vuthy (in 2007), the Committee had previously noted the Government’s indication that an Inter-Ministerial Commission for Special Investigations was established in August 2015 to ensure thorough and expeditious investigations of these criminal cases, and that a tripartite working group attached to the Secretariat of the Commission was established thereafter in order to allow the employers’ and workers’ organizations to provide information in relation to the investigations and to provide their feedback on the findings of the Commission. The Committee notes that the Government indicates that it has been unable to expedite the investigations since it has been facing challenges, including the lack of collaboration from the victims’ families, but that it is committed to undertaking all necessary measures and will continue undertaking its utmost efforts to conclude the investigations and bring the perpetrators and the instigators to justice. The Committee notes from the conclusions of the Committee on Freedom of Association in its examination of Case No. 2318 (see 383rd Report, November 2017) that the National Police Commissariat created an investigation taskforce in 2015, that the Inter-Ministerial Commission held a second meeting in January 2017 and that no progress is reported as to the operation of the tripartite working group. The Committee must express its deep concern with the lack of concrete results concerning the investigations. 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.

Incidents during a demonstration in January 2014. In its previous observations, 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. The Committee had also noted that the ITUC maintained that the committees established to investigate the incidents were not credible, that an independent investigation into the events was still necessary and that those responsible for the acts of violence – which led to the death of five protesters and the wrongful arrest of 23 workers – must be held accountable. The Committee notes that the Government states that the conclusions of the three committees were submitted to the competent courts for further court proceedings and that the Government will not be able to provide them until they become available after conclusion of the court proceedings. The Committee also notes that the Committee on Freedom of Association Case No. 3121 (see 383rd Report, November 2017) urged the Government: (i) to clarify whether the specific allegations of killings, physical injury and arrest of protesting workers following the January 2014 demonstrations are being investigated in the context of the mentioned fact-finding committees and, if so, to provide the specific findings of the committees in this regard; and (ii) should the ongoing investigations not cover this issue, to institute an independent inquiry into the serious allegations without delay and to inform it of the outcome and the measures taken as a result. The Committee further notes that the DCM, recalling the importance of providing assistance and training to police forces with a view to ensuring their full respect for trade union rights, reminded the Government that it could avail itself of the technical assistance of the Office in this regard, with a view, for example, to the development of guidelines, a code of practice or a handbook on handling industrial and protest action. 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, encourages the Government to consider availing itself of the technical assistance of the Office in relation to the training of police forces, with a view, for example, to the development of guidelines, a code of practice or a handbook on handling industrial and protest action.

Legislative issues

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee notes that the Government states that freedom of association is guaranteed to all workers through two pieces of legislation: (i) the Law on Trade Unions (LTU), applicable to the private sector – including domestic workers and workers in the informal economy meeting the LTU’s requirements to form a union; and (ii) the Law on Associations and Non-Governmental Organizations (LANGO) providing for the right to organize of judges, teachers and other civil servants – as well as domestic workers and workers in the informal economy that do not meet the requirements of the LTU. The Government also indicates that further measures will be undertaken through the roadmap to implement the conclusions of the Conference Committee. The Committee must recall once again that some provisions in the LANGO contravene freedom of association rights of civil servants under the Convention, as it 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, and subjects the registration of these associations to the authorization of the Ministry of Interior. While noting that the Government indicated to the DCM that registration can only be rejected if it endangers or adversely affects public safety or public order, the Committee must recall that these grounds afford the authorities a discretionary power that is incompatible with Article 2 of the Convention and emphasizes in this regard the 2017 Conference Committee conclusion that the registration process must be simple, objective and transparent. The Committee further notes that the DCM observed in its conclusions that workers’ organizations and associations expressed deep concern at: (i) the lack of protection of teachers’ trade union rights (referring in particular to sanctions and threats to teachers seeking to organize); and (ii) the difficulties faced by domestic workers and workers in the informal economy in general seeking to create or join unions, since the LTU provides for an enterprise union model, whose requirements are often very difficult to meet by these workers, and does not allow for the creation of unions by sector or profession. In addition, the Committee notes the ITUC claim that the absence of any structure for sectoral representation results in the exclusion from the right to organize of hundreds of thousands of workers in the informal sector. 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 further encourages the Government to promote the full and effective enjoyment of these rights by domestic workers and workers in the informal economy and, to this effect, submit to tripartite consultations in the context of the application of the roadmap to give effect to the conclusions of the Conference Committee, the possibility of allowing the formation of unions by sector or profession.

Article 3. Right to elect representatives freely. Requirements for leaders, managers, and those responsible for the administration of unions and of employer associations. In its previous comments, the Committee had requested the Government to take the necessary measures to amend sections 20, 21 and 38 of the LTU – requiring those wishing to vote, to stand as a candidate for election, or be designated to leadership or management positions in unions or employer associations to meet a minimum age requirement (18), minimum literacy requirements and make a declaration that they have never been convicted for any criminal offence. The Committee notes that the Government states that the requirements of literacy and age are indispensable to ensure the sound and effective operation of worker unions. It also indicates that a minor who is deemed emancipated and with soundness of mind, as stipulated under the Civil Code, will be able to have full legal capacity and be treated as having the minimum legal age (18 years old). The Committee welcomes the Government’s indication that further discussions with the social partners will be conducted as recommended by the Committee. As to the minimum age and the literacy criteria, the Committee recalls once again that it considers to be incompatible with the Convention the requirements that candidates for trade union office should have reached the age of majority, or be able to read and write (see the 2012 General Survey on the fundamental Conventions, paragraph 104). Duly noting that the Government indicates that the civil code emancipation procedure already provides for the possibility to recognize full legal capacity to minors, the Committee considers that the Government could remove the age of majority requirement from the LTU for minors who have reached the statutory minimum age for wage employment (persons of 15 years of age, under section 177 of the Labour Law). Furthermore, the Committee recalls that it considers that conviction for an act 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 performance of trade union duties should not constitute grounds for disqualification from trade union office (see General Survey, op. cit., paragraph 106). The Committee once again requests the Government to, in the context of its ongoing consultations on the application of the LTU, take the necessary measures to amend sections 20, 21 and 38 of the LTU to: (i) guarantee the right of minors who have reached the statutory minimum age for wage employment to be candidates for trade union office; (ii) to remove the requirement to read and to write Khmer from the eligibility criteria; and (iii) to ensure full respect with the abovementioned principle concerning disqualification from trade union office because of criminal offences.

Article 4. Dissolution of representative organizations. In its previous comments the Committee had requested the Government to amend paragraph 2 of section 28 of the LTU, providing that a union is automatically dissolved in the event of a complete closure of the enterprise or establishment. The Committee notes that the Government states that the provision is not contrary to the Convention as it only contemplates the automatic dissolution of the union resulting from the closure of its enterprise or establishment – and it does not constitute a decision of the administrative authority. The Committee observes in this regard that a union may have a legitimate interest to continue to operate after the dissolution of the enterprise concerned (for example, to defend any claims of its members). Recalling that the dissolution of a workers’ or employers’ organization should only be decided under the procedures laid down by their statutes, or by a court ruling, the Committee requests the Government to take the necessary measures to amend section 28 of the LTU accordingly by removing its paragraph 2.

Grounds to request dissolution by Court. In its previous comments the Committee had requested the Government to take the necessary measures to amend section 29 of the LTU, which affords any party concerned or 50 per cent of the total of members of the union or the employer association the right to file a complaint to the Labour Court to request a dissolution. The Committee notes that the Government states that the provision aims to ensure freedom of association as well as democracy and the interests of union members and recalls that only the Court has the full power to dissolve any trade union upon receiving a complaint. The Committee recalls once again that the manner in which members may request dissolution should be left to the organization’s by-laws. The Committee requests the Government to take the necessary measures to amend section 29 of the LTU to leave to the unions’ or employers’ associations own rules and by-laws the determination of the procedures for their dissolution by their members.

The Committee had further requested the Government to take the necessary measures to amend paragraph (c) of section 29, which provides that a union or an employers’ association shall be dissolved by the Labour Court in cases where leaders, managers and those responsible for the administration were found guilty of committing a serious act of misconduct or an offence on behalf of the union or the employer association. The Committee notes that the Government states that: (i) the provision does not refer to any personal or individual offence of leaders or persons responsible for the administration of the union; and (ii) only offences committed by leaders and persons responsible for the administration on behalf of the trade union will lead to the dissolution of the trade union (in other words, the trade union itself must be held responsible for the serious offence committed). The Committee must recall that if it is found that trade union officers have committed serious misconduct or offences through actions going beyond the limits of normal trade union activity – including actions carried out on behalf of the trade union – they may be prosecuted under the applicable legal provisions and in accordance with ordinary judicial procedures, without triggering the dissolution of the trade union and depriving it of all possibility of action. The Committee requests the Government to take the necessary measures to amend section 29 of the LTU by removing its paragraph (c).

Application of the Convention in practice

Independent adjudication mechanisms. The Committee notes that the Government indicates that a draft of the Law on Procedure of Labour Disputes Judgement was completed in August 2017 and that, with the support from the ILO, a tripartite consultative workshop is to be conducted to discuss the draft and receive comments with a view to improving it further and with a view to submitting the draft law to Parliament for adoption by the end of 2017. The Government clarifies that the draft law also aims to strengthen and empower the Arbitration Council (AC). The Government states that it shares with social partners a recognition of the effectiveness of the AC, and that it intends to promote its role, including by empowering it to hear individual disputes. In this respect, the Committee takes note of the recommendations of the DCM, which, acknowledging the Government’s commitment to strengthen the AC, trusted that all necessary measures would be undertaken to enable the AC to continue to be easily accessible and to play its important role in relation to the handling of collective disputes and to ensure that its awards, when binding, are duly enforced (the DCM had observed that workers’ organizations claimed that often the awards of the AC, even when legally binding, were not followed – a concern that is reiterated in the latest observations of the ITUC). The Committee further notes the serious concerns raised by the ITUC, as well as by national workers’ organizations to the DCM, on the alleged lack of independence of the judiciary and its use to criminalize and curtail legitimate trade union activities. In this respect, the Committee recalls that one of the principal findings of the direct contracts mission, which visited the country in 2008, concerned the lack of an effective and impartial judiciary. The 2008 mission noted, in particular, that the judicial system’s ability to discharge its mandate was compromised by lack of capacity, as evidenced by the fact that court decisions and proceedings were often unrecorded and unpublished, and that the judiciary was subject to political interference and has been unable to exercise its functions in an impartial and independent manner (see Case No. 2318, 351st Report, paragraph 250). The mission referred to the need to take the necessary steps to ensure the independence and effectiveness of the judicial system, including through capacity-building measures and the institution of safeguards against corruption. The Committee expects 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, as well as to address the serious concerns raised on the independence of the judiciary and its impact on the application of the Convention, through the measures outlined above. The Committee welcomes the Government’s commitment to strengthen the AC and trusts that the Council will continue to remain easily accessible and to play its important role in the handling of collective disputes, and that any necessary measures will be undertaken to ensure that its awards, when binding, are duly enforced.

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