Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Cambodia (Ratification: 1999)

The Committee notes the comments submitted on 24 August 2010 by the International Trade Union Confederation (ITUC) which refer to matters already under examination, as well as to serious and numerous acts of anti-union discrimination and interference, obstacles to collective bargaining and social dialogue. The Committee also notes the comments submitted on 31 August 2010 by the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC). The Committee requests the Government to provide its observations thereon in its next report.

The Committee notes that in the framework of the discussions on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Conference Committee on the Application of Standards in June 2010 (99th Session) emphasizes the need to ensure that the current reform process brings the legislation into greater conformity with the Convention. It also notes the recommendations of the Committee on Freedom of Association regarding the deficient legislative framework for cases of anti-union discrimination and the non-recognition of collective bargaining rights for civil servants (see Cases Nos 2443, 2655 and 2222).

Articles 1 and 3 of the Convention. Protection against anti-union discrimination. In its previous observation, the Committee referred to the need for appropriate legal protection against acts of anti-union discrimination, including sufficiently dissuasive sanctions, and had requested the Government to indicate the measures adopted in order to modify the legislation so as to provide for such sanctions. The Committee notes that in its comments of 24 August 2010, the ITUC reports severe cases of anti-union discrimination and anti-union dismissals, including of pregnant women. The Committee also notes that the discussion during the Conference Committee in June 2010 pointed out the persistent climate of violence and intimidation towards union members, including the failure of the system to protect trade union leaders and members from acts of anti-union discrimination. The Committee notes that the Government indicates in its report that the efficiency of the implementation of the Labour Law improved thanks to the ILO’s technical assistance and that at the end of March 2010, a high-level tripartite consultation on industrial relations finalized a consensus between trade union and employers’ associations on nine points that will assist the harmonization of industrial relations pending the drafting of the new law on trade union. The Committee underlines the need to take steps without delay to adopt an appropriate legislative framework in full consultation with the social partners to ensure adequate protection against all acts of anti-union discrimination, dismissals and other prejudicial acts, including by means of sufficiently dissuasive sanctions.

Article 4. Recognition of trade unions for purposes of collective bargaining. In its previous observation, the Committee took note of Prakas No. 13 of 2004, which lays down the procedure for granting most representative status to professional organizations at the enterprise or institutional level. The Committee noted in particular that section 1 of Prakas No. 13 provides that the Ministry of Social Affairs, Labour, Vocational Training and Youth Rehabilitation (MOSALVY) may refuse to grant most representative status to a trade union when an objection is put forward from a member of the Labour Advisory Committee, or from enterprises, institutions or a concerned third party. The Committee considered in this respect that permitting the objections of third parties as grounds for refusing a union most representative status ran counter to the principle of promoting collective bargaining expressed in Article 4 of the Convention. The Committee recalls that the determination of the most representative organizations must be based on objective, pre-established and precise criteria so as to avoid any possibility of bias or abuse (see the 1994 General Survey on freedom of association and collective bargaining, paragraph 97). The Committee notes with regret that the Government indicates in its report that no progress has been made in this respect. The Committee therefore once again requests the Government to amend section 1 of Prakas No. 13 accordingly, and to provide information on the progress made in this respect in its next report.

Articles 4 and 6. Right to collective bargaining of public servants. The Committee had previously noted that according to section 1 of the Labour Law, certain categories of workers, which include persons appointed to a temporary or a permanent post in the public service, are not covered by this legislation. It had further noted that the Committee on Freedom of Association (see Case No. 2222, 334th and 356th Reports) had requested the Government to take the necessary measures to amend the Common Statute of Civil Servants so as to guarantee the right to collective bargaining of civil servants not engaged in the administration of the State, and requested the Government to indicate whether the categories of workers in question benefit from the guarantees provided for in the Convention under other legal provisions and, if not, to take the necessary measures in order to ensure the application of the Convention to these categories of workers. The Committee noted in this regard the Government’s statement that since the rights of judges, teachers, and temporary and permanently appointed officials in the public service were provided for by separate laws pertaining to public ministries or institutions, it was unable to amend the labour law in accordance with the Committee’s requests.

The Committee notes the information provided by the Government in its report, that under the Common Statute of Civil Servants, salaries of civil servants should be automatically increased on their third year of employment and if their salary is not increased within two years, in the third year, civil servants can complain to the public function secretariat or to the court. The Committee recalls however that wages, benefits and other labour conditions constitute matters of collective bargaining. The Committee also notes that the Government indicated during the discussions in the Conference Committee in June 2010, that it was considering guaranteeing the right of collective bargaining to civil servants.

Concerning the application of the Convention in practice, the Committee notes with concern the comments made by the ITUC recalling that the Cambodian Independent Teachers Association and the Cambodian Independent Civil Service Association (civil servants’ association) are not recognized as trade unions by the Ministry of Labour and therefore do not enjoy collective bargaining rights. The Committee once again requests the Government to take the necessary measures to amend the laws pertaining to all public sector workers, so as to ensure the right to collective bargaining for all public servants, including teachers, with the only possible exception of those engaged in the administration of the State. More particularly, the Committee urges the Government to immediately take the necessary measures to amend the Common Statute of Civil Servants so as to guarantee fully the right to collective bargaining. The Committee requests the Government to provide with its next report information regarding any developments in this respect.

Revision of the legislation. The Committee notes that the Government indicated during the discussions in the Conference Committee on the Application of Standards in June 2010, that it was working in cooperation with the ILO on a draft Trade Union Law to be adopted by Parliament in 2011 and that it expected the Law to guarantee the right of workers and employers to bargain collectively through the streamlining of rules for the certification of the union with the most representative status, the creation of a legal framework for collective bargaining agreements and the definition of unfair labour practices by employers and workers. The Committee requests the Government to take the necessary measures in the near future to ensure full consultation with the social partners concerned with respect to labour law reform and to ensure their full and equal participation in all relevant social dialogue forums. The Committee requests the Government to provide, with its next report, information on these matters, as well as a copy of the legislation once adopted.

Application of the Convention in practice. Noting the comments made by the ITUC in August 2010 according to which collective bargaining is rare and difficult and only a few unions have managed to conclude collective agreements, the Committee expresses its concern about this information and reiterates its request to the Government to communicate in its next report statistics on the collective agreements (workers and sectors covered in the different regions, and number of collective agreements).

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.