Rapport intérimaire - Rapport No. 404, Octobre 2023

1. 185. The Committee last examined this case at its March 2023 meeting when it presented an interim report to the Governing Body [see 401st Report, paras 197–269, approved by the Governing Body at its 347th Session (March 2023)]. 
2. 186. The International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) sent new allegations in a communication dated 4 August 2023.
3. 187. The Government forwarded supplementary observations in a communication received on 14 September 2023.
4. 188. 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. Previous examination of the case

1. 189. At its March 2023 meeting, the Committee made the following recommendations on the matters still pending [see 401st Report, para. 269]:
   • (a) 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 represent them in respect of their individual grievances.
   • (b) The Committee urges the Government to take the necessary steps for an independent investigation into the detailed allegations provided by the complainants in respect of government, military and police intervention, violence and harassment in the industrial action carried out by the LRSU and to transmit the outcome and ensure that the competent authorities receive adequate instructions so as to avoid any danger of violence. The Committee further 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.
   • (c) The Committee urges the Government to take the necessary measures to ensure an independent investigation is carried out into the various acts 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.
   • (d) 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.
   • (e) 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.
   • (f) The Committee expresses its deep concern that Chhim Sithar was arrested upon her return from the 5th World Congress of the ITUC and has been retained in preventive detention over two months and, given that the initial charges concerned her participation in peaceful industrial action, urges the Government to ensure her immediate and unconditional release and the restitution of any confiscated trade union property.
   • (g) 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.

B. Additional information and new allegations from the complainant

1. 190. In its communication dated 4 August 2023, the IUF and its affiliate the Labor Rights Supported Union of Khmer Employees of Naga Hotel (LRSU) provide additional information and new allegations in relation to this case. In particular, they note with urgency, the criminal convictions of 9 LRSU members and the continued imprisonment of LRSU President Chhim Sithar, as well as remarks by current Prime Minister Hun Sen discouraging LRSU members from continuing to participate in the lawful, peaceful strike.
2. 191. The IUF recalls in this regard the Committee’s previous conclusions emphasizing that, “Penal sanctions should not be imposed on any worker for participating in a peaceful strike” and “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.” and the Committee’s request that the Government ensure all charges brought against LRSU leaders and members for participating in a peaceful strike were dropped. The IUF highlights, in particular, the conclusion related to the LRSU President that, “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.”
3. 192. The IUF however observes that on 25 May 2023, the Phnom Penh Court of First Instance announced its decision and sentencing in the incitement trials of nine members of LRSU including Chhim Sithar after a trial ending 3 May 2023. The Court convicted LRSU President Chhim Sithar on the charge of incitement to commit a felony under criminal code articles 494 and 495 with a sentence of two years imprisonment, and she was transferred back to prison. Sithar was originally held for 74 days in pre-trial detention before being released on bail in March 2022. She was then re-arrested and detained on 26 November 2022. With eighth months served pre-trial, the sentence adds sixteen months of detention in prison.
4. 193. The Court also convicted LRSU members Chhim Sokhorn, Sun Sreypich, Hay Sopheap, Kleang Soben, and Touch Sereymas on the charges of incitement to commit a felony under criminal code articles 494 and 495 with a suspended sentence of 1.5 years and judicial supervision including monthly police check ins. LRSU members Ry Sovandy, Sok Narith, and Sok Kongkea were also convicted on charges of incitement to commit a felony under criminal code articles 494 and 495 with a suspended sentence of one year.
5. 194. While the Committee emphasized 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”, Prime Minister Hun Sen has repeatedly and publicly urged the LRSU strikers to end the strike and protests and undermined the legitimacy of the industrial action. These statements urge strikers to leave the strike and accuse them of being hired non-employees, accuse foreigners of illegally funding the strike, and defend NagaWorld’s Mass layoffs.
6. 195. The IUF and LRSU therefore once again request the committee to: (i) urge withdrawal of all the convictions based on lawful organizing and participating in peaceful strikes; (ii) release of LRSU President Chhim Sithar and removal of all judicial supervision requirements for LRSU members Chhim Sokhorn, Sun Sreypich, Hay Sopheap, Kleang Soben, and Touch Sereymas; and (iii) the cessation of statements discouraging strikes and lawful trade union activity.

C. The Government’s reply

1. 196. The Government provides the following information in relation to the Committee’s previous recommendations. As regards recommendation (a), the Government states that the Department of the Labour Dispute (DLD) has never received any application for the most representative status(MRS) recognition from the LRSU. As regards the elected LRSU officers (in April 2022), the DLD received a request to register the new leaders on 9 May 2022 and, after carefully scrutinizing the supporting documents, found that the election of new leaders of the LRSU did not comply with article 4 and particularly article 9 of the Law on Trade Unions (LTU), due to the fact that the elected leaders, as well as some participants who joined in the election, were no longer employed by Naga World. As a result, this led to the false determination of quorum in the election, which also did not comply with article 22 of the LTU. According to registration requirements, set forth in article 12 of the LTU, the DLD issued a letter dated 6 June 2022 to delay the new leader registration of the LRSU. In this sense, the LRSU has a period of 30 days to rectify and re-submit its documents as stipulated in article 16 of the LTU. On 20 June, 2022, the DLD issued another letter requesting Naga World to temporarily withhold union dues in order to guarantee transparency and benefits of the union members until the new union leaders are legally registered and recognized. The DLD’s decision was underpinned by the provision of article 25 of the LTU, providing that “The leaders and persons responsible for the administration shall be liable for the use and management of the finances and assets of the worker union or employer association”.
2. 197. In respect of peaceful assembly and protest, the Government emphasizes that, in cooperation with the authorities and in compliance with security, safety, and public health measures, these are the exercise of the rights guaranteed by the Cambodian Constitution. On the contrary, however, assembly and protest without notifying and cooperating with the authorities violate security, safety, and public health measures, triggering violence and social unrest, affecting public order, national security, and the rights and freedoms of others, as well as putting pressure on the judiciary, which is an independent body. These actions are in violation of the law, and the authorities must take all possible measures to prevent them, and protesters held responsible.
3. 198. The authorities therefore found compelling evidence that the leaders of the union, as the organizers of the protest, had a malicious intention to vandalize the company's property and incite violence to cause social unrest and insecurity by using the workers and protesters as a political tool. As a result, three of them were arrested and sent to the court for further proceedings in accordance with articles 494 and 495 of the Cambodian Criminal Code. In addition, another three protesters have also been arrested and charged with the obstruction of health measures against COVID-19 in accordance with the Cambodian COVID-19 Law. Currently, they are released under judicial supervision. Only the leader has been sent back to pre-trial detention due to the breach of release on bail condition.
4. 199. Ms. Chhim Sithar was not rearrested because of her involvement in the labour dispute between the trade union and Naga World but rather due to her violation of the terms of release under which she must seek the court's consent should she wish to leave the country. This violation constituted an act of breaching obligation under judicial supervision. Thus, the court ordered her arrest in accordance with article 230 of the Code of Criminal Procedures. In reply to the allegation that both Ms Chhim Sithar and her lawyer were not informed by the court of the obligation to have prior permission from the investigating judge before leaving the country, the Government reiterates that this requirement is a standard term in the court's verdict for provisional release and Ms. Chhim Sithar's lawyer should have been very well aware of this obligation and advised their client. Her case is a matter for the sole discretion of the courts in accordance with the law. Parties that are dissatisfied with the court's decision may make an appeal against it.
5. 200. Finally, the Government reaffirms its firm commitment to promoting, protecting, and adhering to all duties and obligations stipulated in relevant international labour conventions to which it is a party.

D. The Committee’s conclusions

1. 201. The Committee recalls 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 and where the union in question, the LRSU, formed in 2000, has repeatedly met obstacles to its full recognition.
2. 202. The Committee observes with deep concern that, despite its previous recommendations, the complainants have provided additional information and new allegations, including the conviction with suspended sentences of a number of LRSU activists for their participation in the industrial action concerning the conflict at the enterprise and in particular the sentencing and continuing prison detention of the LRSU president, Chhim Sithar.
3. 203. With regard to these grave allegations, the Committee observes that the Government repeats its view that the actions were illegal as they did not conform to security, safety, and public health measures again without providing detailed information on the manner in which their actions impacted upon the above concerns. Moreover, the Committee regrets that the Government has not provided the judicial decisions against the LRSU members that may have shed some light in this regard. 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 and 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. The Committee has pointed out that, where persons have been sentenced on grounds that have no relation to trade union rights, the matter falls outside its competence. It has, however, emphasized that whether a matter is one that relates to the criminal law or to the exercise of trade union rights is not one which can be determined unilaterally by the government concerned. This is a question to be determined by the Committee after examining all the available information and, in particular, the text of the judgement. [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 752, 971 and 181]. The Committee therefore is bound to reiterate its call on the Government to ensure the immediate and unconditional release of Chhim Sithar, as it had urged in its previous recommendation, and to furnish all judicial decisions in the sentencing of the LRSU leaders and members.
4. 204. The Committee further notes that the Government reiterates its position in respect of the non-recognition of the April 2022 election of LRSU officers and must recall in this respect its conclusions that the consideration of the request for recognition of the April 2022 election of LRSU officers should have taken into account that the status of the voting members had yet to be finalized 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 and therefore a strict application of article 4 and article 9 of the LTU concluding that the elected leaders, as well as some participants who joined in the election, were no longer employed by Naga World should not apply. The Committee therefore once again 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.
5. 205. As regards the request for most representative status (MRS) refused to the LRSU and considered in the context of a previous case concerning Cambodia (Case No. 2783), the Committee recalls that in the absence of MRS, the LRSU has not been able to represent its members before the Arbitration Council (AC). While the Committee had insufficient information to determine the representative status of the LRSU, it recalled 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 and that workers should be able to be represented in their grievances, whether collective or individual, by the organization of their own choosing. The Committee notes the Government’s indication that the LRSU has not requested MRS. In the current context, including with the non-recognition of the April 2022 officers’ election, the Committee urges the Government 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.
6. 206. Finally, observing that the Government has not replied to its other requests for action and information, the Committee is bound to reiterate its recommendations and requests the Government to provide detailed information in this respect without delay.