Observation (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

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 Trade Union Confederation (ITUC), received on 1 September 2021, concerning matters examined in this comment and also denouncing that in August 2021: (i) Rong Chhun, the president of the Cambodian Confederation of Unions (CCU) and ex-president of the Cambodian Independent Teachers’ Association (CITA), who was arrested in July 2020 following his advocacy for villagers in a land dispute along the Cambodia–Vietnam border, was sentenced to two years imprisonment; and (ii) Sar Kanika, president of the Cambodian Informal Labourers’ Association, who also participated in these trade union activities in defence of the economic interests of farmers, was similarly sentenced to 20 months imprisonment. The Committee welcomes the news on the release of Mr Chhun and Ms Kanika in November 2021.

The Committee notes that the ITUC further denounces that over the past year a number of emergency laws and decrees were passed restricting the exercise of freedom of association. The ITUC alludes in particular to: (i) the Law on the Management of the Nation in Emergencies, alleging that it grants the Government broad powers to ban meetings and gatherings, to survey telecommunications, to ban or restrict news media that may harm “national security” and other measures that are “suitable and necessary”, with infractions punishable by heavy imprisonment terms and fines; and (ii) the Law on Measures to Prevent the Spread of COVID-19 and other Serious, Dangerous and Contagious Diseases, which includes bans on gatherings and unspecified “administrative and other measures that are necessary to respond and prevent the spread of COVID-19”. The ITUC alleges that such vague provisions allow for abuses by the authorities through arbitrarily targeting people and organizations protesting government policies. The ITUC also alleges that a problematic draft public order law would require approval from authorities for the use of public spaces and would permit authorities to stop an event if authorization has not been sought. The ITUC further alleges that Mrs Soy Sros, president of a local union affiliated to the Collective Union of Movement of Workers, was detained on 3 April 2020 by police in the Kompong Speu Province pursuant to a criminal complaint filed against her by the employer for having posted messages on social media related to a labour dispute concerning the unjust dismissal of a number of union members. The Committee notes that, as to the need to investigate allegations of violent repression of trade union activity, and detention or prosecution of trade union leaders for undertaking legitimate trade union activities, the Government: (i) informs that grievance and complaint procedures are in place at all levels and that any individual, including trade unionists, can use and benefit from them; (ii) notes in general that trade unions and trade unionists must submit their grievances to the responsible authorities, who will take immediate action in accordance with applicable rules and procedures, and provide relevant information so that the Ministry of Labour and Vocational Training (MLVT) can provide legal assistance accordingly; and (iii) states that if trade union leaders commit any criminal offence they shall be liable for it. While observing from publicly available information that there has been some evolution concerning the release of Mrs Soy Sros, the Committee regrets that the Government has not provided more information as to other specific allegations submitted to it by workers’ organizations and requests it to provide its detailed comments on all these serious allegations.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 109th Session, June 2021)

The Committee notes the discussion which took place in June 2021 in the Conference Committee on the Application of Standards (the Conference Committee) concerning the application of the Convention by Cambodia. The Committee observes that the Conference Committee expressed deep concern at the continuing acts of violence against workers, the arrests of trade unionists in connection with their activities as well as the lack of effective and timely investigations in relation to these incidents and urged Government to: (i) investigate all allegations of violent repression of trade union activity and detention of trade union leaders; (ii) take all necessary measures to expedite the investigations into the murders of trade union leaders Chea Vichea and Ros Sovannareth (in 2004) and Hy Vuthy (in 2007) and ensure that the perpetrators of the crimes are brought to justice; (iii) undertake all necessary efforts to settle the legal proceedings against trade unionists in connection with the incidents during the January 2014 demonstrations, ensure that no criminal charges or sanctions are imposed in relation to the peaceful exercise of trade union activities and drop all criminal charges for those trade unionists charged in connection with the January 2014 demonstrations; and (iv) take all necessary measures to stop arbitrary arrest, detention and prosecution of trade unionists for undertaking legitimate trade union activity. The Conference Committee also noted that, while some positive steps have been achieved in bringing the law in line with the Convention, serious compliance issues remain unaddressed, and called upon the Government to: (1) 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; (2) ensure that acts of anti-union discrimination are swiftly investigated and that, if verified, adequate remedies and dissuasive sanctions are applied; (3) with the help of ILO technical assistance, develop guidelines, a code of practice or a handbook on the policing and handling of industrial and protest actions; (4) amend the Law on Trade Unions, in consultation with the social partners, to ensure compliance with the Convention; (5) ensure that workers are able to register trade unions through a simple, objective and transparent process; (6) continue to identify appropriate legal measures, in consultation with the social partners, to ensure that teachers, domestic workers and civil servants not covered by the Law on Trade Unions (LTU) have the freedom of association rights under the Convention; (7) repeal the literacy requirement in sections 20, 21 and 38 of the LTU; repeal paragraph 2 of section 28 of the LTU on the automatic dissolution of workers’ organizations in case of complete closure of an enterprise or establishment and repeal section 29 of the LTU on the dissolution of employers’ and workers’ organizations initiated by members of those organizations; (8) discuss with the social partners the possibility of allowing the formation of employers’ and workers’ organizations by sector or profession; and (9) increase its efforts to make the Arbitration Council an effective and sustainable institution in handling labour disputes and ensure that binding Arbitration Council decisions are effectively enforced in law and in practice. Finally, the Conference Committee recommended that the Government accept a direct contacts mission as soon as possible. In this respect, the Committee welcomes that by a communication of 10 August 2021 the Government accepted the direct contacts mission and is in contact with the ILO in order to organize its realization whenever feasible in the context of the COVID-19 pandemic.

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 notes that: (i) as to the murder of Chea Vichea the Government indicates that re-investigation is currently under the authority of the Phnom Penh Police, noting that in spite of the challenges the police have been making an effort to end the case, and reiterating that close collaboration of family members and all parties concerned remains indispensable; (ii) with regard to the murder of Ros Sovannareth, the Government recalls that the Court of Appeal reconsidered the case and issued a verdict in July 2019, where the suspect Thach Saveth was sentenced to 15 years of imprisonment for premeditated murder; and (iii) concerning the murder of Hy Vuthy, the Government recalls that Chan Sophon, the suspect who was arrested in September 2013, filed an appeal and was released in February 2014, and notes that the other suspect who was also sentenced in absentia, Phal Vannak, is under arrest warrant. The Committee notes, on the other hand, that the ITUC denounces once again the nonresolution and lingering impunity with regard to these murders 17 and 14 years after they occurred. The Committee reiterates its deep concern at the lack of progress concerning the investigations, and refers in this respect to the conclusions and recommendations of the Committee on Freedom of Association in its examination of Case No. 2318 (see 396th Report, November 2021, paragraphs 166 to 172). Recalling once again the need to conclude the investigations and to bring to justice the perpetrators and the instigators of these crimes, the Committee firmly urges the competent authorities to take all necessary measures to expedite the process of investigation and report on meaningful progress.

Incidents during the January 2014 demonstrations. Concerning the trade unionists facing criminal charges in relation to incidents during the January 2014 demonstrations, in its previous comment the Committee had noted with interest that the six trade union leaders that had initially been sentenced to a suspended three years and six months imprisonment were acquitted of all charges on 28 May 2019; had further noted, as to other trade unionists under judicial procedures, that a working group had been established to follow up with the court in order to expedite the settlement; had taken note of detailed statistics concerning the settlement efforts; and had requested the Government to continue providing information on pending procedures. The Committee notes that in its latest report the Government: (i) reiterates that the riot that took place could not be considered as peaceful exercise of trade union activities, and that it was a politically motivated act; (ii) states that the complaints were submitted to the competent courts that ruled at their discretion in accordance with the evidence provided (some suspects were discharged if they were innocent in accordance with procedural rules); (iii) indicates that as of November 2021 there were few criminal cases under the court proceedings and none of these cases were related to the exercise of freedom of association; and (iv) recalls that the MLVT and the Ministry of Justice have been working together to provide legal support to trade unionists whose court cases are still pending. The Committee notes, on the other hand, that the ITUC: (i) recalls that garment workers were protesting for a liveable minimum wage and that, in return, military police opened fire killing and wounding several of them; (ii) laments that after seven years there remain unsolved cases concerning the arbitrary arrests and detention of trade unionists following the 2014 protests; and (iii) denounces that several trade unionists still have criminal or civil charges pending against them for their peaceful participation in the demonstrations. The Committee further notes that, in reply to the request of the Conference Committee to provide the reports of the three committees charged with investigations into the murders of, and violence perpetrated against, trade union leaders, the Government reiterates that it cannot share the detailed reports of the three committees as they pertain to internal affairs of the country, but that, as reported to the direct contacts mission in 2016, the conclusions of the three committees were submitted to the competent courts for further proceedings and the Government will be able to share the outcome of the court proceedings once available. The Committee requests the Government to continue providing information on the pending legal procedures against trade unionists, in particular on any verdicts issued, as well as to provide detailed information on any court rulings resulting from the conclusions of the fact-finding committees investigating the allegations of killings, physical violence and arrests of protesting workers, as well as all materials from the fact-finding committees’ reports that do not directly implicate internal affairs of the country.

Training of police forces in relation to industrial and protest action. In its previous comments, 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, the Committee encouraged 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. The Committee duly notes that the Government informs that: (i) 120 police officers from four different units received the training co-organized by the MLVT and the Office of the High Commissioner for Human Rights, with the support of the ILO; (ii) follow-up trainings took place in 2020, with a total of 550 police officers participating in trainings on the rights to strike and peaceful demonstration; and (iii) in light of the outcomes of such trainings, the MLVT will continue liaising with relevant institutions to conduct consultations on the development of a guideline on measure on labour disputes and industrial action, and a request for technical support will be submitted to the ILO in due course. The Committee requests the Government to continue providing information in this regard, in particular as to the development, with the assistance of the ILO, of guidelines, a code of practice or a handbook on the policing and handling of industrial and protest actions, and as to the number of police officers participating in training sessions, the duration of such training, and the subjects covered, including as to whether the disciplinary consequences of using excessive force are part of the training.

Legislative issues

The Committee notes that the Government reiterates the information provided on the amendments to the LTU that entered into force in January 2020, stating that they resulted in an increment in the number of professional organizations registered, and indicating that out of the 5,650 professional organizations registered, 5,352 are local worker unions, 247 federations of worker unions, 40 confederations of worker unions and 11 employer associations. The Committee notes the Government’s indication that it is unnecessary to further amend the LTU; the Government notes that a key priority is to raise awareness of trade unionists on the provisions of the LTU, it welcomes further consultations to review the content of the LTU and its implementation and it would like to seek ILO support to organize trainings on the LTU to build the capacity of social partners. The Government further encourages workers and trade unionists to bring any complaint to the MLVT in the event of any irregularity with respect to registration, representation and exercise of freedom of association under the LTU. On the other hand, the Committee notes that the ITUC alleges that the amendments to the LTU failed to bring it into conformity with the Convention and that trade unions report that the Government did not meaningfully engage with them and refused to consider the unions’ proposed amendments, which would have ensured compliance with the Convention.

Article 2 of the Convention. Rights of workers and employers, without distinction whatsoever, to establish and join organizations. In its previous comments the Committee has been urging 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 notes that the Government reiterates that the LTU is applicable to teachers working for private institutions and that civil servants and public school teachers can enjoy freedom of association pursuant to the Law on Associations and Non-Governmental Organizations (LANGO). The Government adds that the Convention does not require that the freedom of association of all individuals be covered by a single legal instrument, and indicates that these different regimes are due to the administrative system and division of authorities of the state institutions in charge of the registration of professional organizations. In this respect, the Committee must recall once again its prior emphasis that some provisions in the LANGO contravene freedom of association rights of civil servants under the Convention, as that law lacks provisions recognizing civil servants’ associations’ 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, and 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. In addition, the Committee has been noting that workers’ organizations and associations express deep concern at the lack of protection of teachers’ trade union rights (referring in particular to sanctions and threats to teachers seeking to organize). The Committee notes that the ITUC observations allege again that the regressive framework of the LANGO is not compliant with the Convention. Regretting the continuing absence of progress in this respect, the Committee must once again urge the Government to take appropriate measures, in consultation with the social partners, to ensure that civil servants – including public sector teachers – who are not covered by the LTU are fully ensured their freedom of association rights under the Convention, and that the legislation applicable to them is amended accordingly.

As to domestic workers, the Committee notes that the Government states that the LTU is applicable to them. Furthermore, concerning the possibility of forming organizations by sector or profession, the Government indicates that there is no prohibition on the formation of organizations by sector or profession as long as the criteria stipulated in the LTU are met, and claims that the Convention does not require national law to expressly stipulate such provision. The Government adds that it would like to seek ILO assistance to organize trainings to promote public awareness of workers and employers in this regard. Having duly noted these indications, the Committee recalls that workers’ organizations have been expressing deep concern as to the difficulties faced by domestic workers and also 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 that the law in practice does not allow for the creation of unions by sector or profession. The Committee further notes that the ITUC once again highlights in its observations, as one of the most relevant shortcomings of the national legislation, that domestic workers, workers in the informal economy and others not organized on an enterprise model, still cannot in practice form and join unions. The Committee encourages the Government to promote the full and effective enjoyment of the rights under the Convention by domestic workers and workers in the informal economy. For these workers and other workers who are not easily organized on an enterprise level model, the Committee requests the Government to take any necessary measures to allow the formation of unions by sector or profession, in consultation with the social partners and with the assistance of the ILO.

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 comment the Committee had requested the Government to take the necessary measures to amend sections 20, 21 and 38 of the LTU to remove the requirement to read and to write Khmer from the eligibility criteria of foreigners. The Committee notes that the Government indicates in this respect that the LTU was amended through tripartite consensus and that the requirement is not incompatible with the Convention. On the other hand, the Committee notes that the ITUC observations denounce again the requirement as one of the important pending hurdles to conform the LTU to the Convention. The Committee further recalls that the legal imposition of literacy requirements for the eligibility of representatives is incompatible with the Convention (see 2012 General Survey on the fundamental Conventions, paragraph 104). The Committee requests once again that the Government take the necessary measures to remove the requirement to read and to write Khmer from sections 20, 21 and 38 of the LTU. The Committee requests the Government to provide information on any developments in this respect.

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 observed that the 2019 amendments to the LTU retained under paragraph 2 of section 28 the automatic dissolution of a union in the event of a complete closure of its enterprise or establishment, but included an additional condition: complete payment of workers’ wages and other benefits. The Committee notes that the Government reiterates that the amendment was made to ensure the interests of workers and trade unions when the enterprise is closed down, that the amendment was thus welcomed by the unions, and that as local unions are legally attached to the existing enterprise where they are formed, when that enterprise no longer legally exists the local union should no longer exist either. In this respect, the Committee must recall that, while the payment of wages and other benefits may be one of the reasons why a union may have a legitimate interest to continue to operate after the dissolution of the enterprise concerned, there may be other legitimate reasons for it to do so (such as defending other legitimate claims, including against any legal successors of the former company). 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 once again that the Government take the necessary measures to amend section 28 of the LTU accordingly by fully removing its paragraph 2.

Grounds to request dissolution by Court. The Committee has also been requesting 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. Observing that the 2019 amendments to the LTU did not modify the provision in question, and noting that members can always decide to leave the union, the Committee recalled in its previous observation that the manner in which members may request dissolution should be left to the organization’s by-laws. Noting that the Government does not provide any additional comments in this regard, the Committee once again requests it to take the necessary measures to amend section 29 of the LTU so as to leave to the unions’ or employers’ associations own rules and by-laws the determination of the procedures for their dissolution by their members.

Application of the Convention in practice

Independent adjudication mechanisms. In its previous comments the Committee has been recalling the importance of ensuring 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. The Committee has also welcomed the Government’s commitment to strengthen the Arbitration Council (AC) and trusted that the AC would continue to remain easily accessible and to play its important role in the handling of collective disputes, and that any necessary measures would be undertaken to ensure that its awards, when binding, are duly enforced. The Committee notes with interest the Government’s indication that the new amendment to the Labour Law has expanded the jurisdiction of the AC to also cover individual disputes, and that the Government reiterates its firm commitment to supporting the operation of the AC and ensuring the sustainability of this institution. The Committee further notes that the Government indicates, as to the AC decisions, that the disputing parties are required to choose between a binding or a non-binding award from the outset, and that in case of non-compliance with a binding award the party concerned may file a complaint to the competent court to seek enforcement. Emphasizing the importance of the independence of adjudication mechanisms, the Committee invites the Government to continue to provide information on the operation of the AC, including on the number and nature of disputes brought before it and as to the extent of compliance with non-binding AC awards, as well as the use of the courts to ensure that the AC awards, when binding, are duly enforced, including the number of court rulings issued to this end.

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