Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 408, Octobre 2024

Cas no 3424 (Cambodge) - Date de la plainte: 17-MARS -22 - En suivi

Allegations: The complainant organizations denounce violations of trade union rights by the Government in relation to the arrest and detention of union leaders and activists, anti-union discrimination and union busting

1. 224. The Committee last examined this case (presented in March 2022) at its October–November 2023 meeting, when it presented an interim report to the Governing Body [see 404th Report, approved by the Governing Body at its 349th Session (October–November 2023), paras 185– 207].
2. 225. The International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) submitted new allegations in a communication dated 29 February 2024.
3. 226. The Government sent its observations in communications dated 20 May and 9 and 23 September 2024.
4. 227. 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. 228. At its October–November 2023 meeting, the Committee made the following recommendations on the matters still pending [see 404th Report, para. 207]:
   • (a) The Committee urges the Government once again to ensure the immediate and unconditional release of Chhim Sithar and to furnish all judicial decisions in the sentencing of the LRSU leaders and members.
   • (b) The Committee 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. 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.
   • (c) The Committee once again 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. It requests the Government to keep it informed of the steps taken in this regard.
   • The Committee once again 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.
   • As regards the allegations that the enterprise filed a formal complaint against 18 female strikers, including Chhim Sithar, the Committee once again requests the Government and the complainants to provide detailed information on the nature of the charges and the current status of these cases.
   • 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. 229. In its communication dated 29 February 2024, the IUF reiterates the background to the case and provides additional information, alleging that despite the Committee’s recommendations, the situation of members of the Labor Rights Supported Union of Khmer Employees of Naga Hotel (LRSU), affiliated to the IUF, has not improved. It alleges that: (i) in November 2023, more than 70 LRSU members who had participated in the 2021–22 strike, which was part of the original complaint, were terminated after they refused to cease union activity; and (ii) in February 2024, the enterprise incited LRSU members to withdraw from the union in exchange for the payment of union dues collected and withheld from the union since May 2022.
2. 230. In relation to the November 2023 termination of union members, the IUF alleges that following the 2021–22 strike, in March 2022, the enterprise issued a notice to striking workers demanding their return to work under the penalty of termination. It alleges that 73 union members who complied with the order and returned to work were sent to the enterprise’s “Academy” – a training area for new employees located in the enterprise building but separate from other staff areas. The workers were given little work but were paid their salaries while the enterprise was allegedly investigating their involvement with the LRSU. Although the workers repeatedly inquired about their employment status, they were not provided any answers. In November 2023, 18 months after having been separated from the other workers, 72 of them were terminated without cause, while 1 woman who was on maternity leave later accepted compensation for termination of her employment. Over a period of five days, the workers were summoned individually or in pairs to meetings with enterprise representatives and told that they could keep their jobs if they ceased all union engagement and terminated their LRSU membership. If they continued union engagement, they would be instructed to sign a mutual agreement to terminate their contract and would receive a severance package or, if they refused, they would be dismissed without severance. Of the 72 workers, 4 refused to sign the agreement, their identification cards were confiscated, and they were escorted out of the building. According to the complainant, the LRSU has not been consulted during the 18-month period or allowed to negotiate on behalf of its members. In January 2024, the LRSU released an open letter demanding the reinstatement of all 72 union members. It also intends to submit a formal complaint to the Ministry of Labour and Vocational Training (MoLVT) asking for reinstatement of all terminated workers.
3. 231. Concerning the withholding of union dues and anti-union incitement, the IUF alleges that since May 2022, the enterprise refused to release union dues deducted from workers’ salaries to the LRSU. This temporary freeze on transferring union dues was announced by the MoLVT in June 2022 and a few days later also by the enterprise in a letter to the workers. In February 2024, current workers and union members were told by the enterprise that if they resigned from the LRSU, the dues collected for the past 21 months would be returned to them. In reply, the LRSU issued a statement demanding the immediate transfer of the frozen dues to the union.
4. 232. The IUF thus alleges that the enterprise’s demands in March 2022 for workers to come back to work or face termination, the termination of 73 workers who refused to cease union membership in November 2023, and the February 2024 coercion to leave the union in exchange for payment of withheld union dues are a clear violation of freedom of association and the right to organize.

C. The Government’s reply

1. 233. In its communications dated 20 May and 9 and 23 September 2024, the Government provides information in relation to most of the pending issues. Concerning the refusal to recognize LRSU officers following the April 2022 elections, the union’s capacity to represent its members and the freezing of membership dues, the Government reiterates previously provided information, highlighting the non-compliance of the elections with the applicable legislation, as some union leaders were not considered as employed by the enterprise, and justifying the freezing of union dues. It adds that it encourages the union to rectify the registration documents and resubmit its application.
2. 234. In relation to the detention of Chhim Sithar, the LRSU President, the Government reiterates the circumstances of her arrest, trial and conviction. It also provides a clarifying judicial note dated 7 August 2023. In this note, the Phnom Penh Court of First Instance recalled the context of the arrest of Chhim Sithar and noted, based on excerpts of voice recordings of the LRSU President from meetings in preparation of the 2021–22 strike, that her actions amounted to incitement to cause serious disruption to national security. The court further found that, during the investigation proceedings, while on bail, the accused violated her bail conditions by leaving the country in November 2022 without prior notification and permission from the court authorities. She was thus temporarily detained, in line with the applicable legal procedure (section 230 of the Code of Criminal Procedure). The Government states that Chhim Sithar’s conviction on 25 May 2023 to two years of imprisonment was upheld by the Court of Appeal in a judgment dated 19 October 2023 and by the Supreme Court on 3 May 2024. According to the Government, the trial was conducted in public and in a legal manner with full rights and access to legal counsel. The Government further indicates that it provided the criminal judgment dated 25 May 2023 (judgment not submitted with communication). In its latest communication, the Government informs that Chhim Sithar was released from prison on 16 September 2024 upon completion of the two-year sentence.
3. 235. Regarding the allegations of government, military and police intervention, violence and harassment during the industrial action carried out by the LRSU, the Government states that if demonstrations involve violent actions, protesters must be held responsible before the applicable law. It adds that the Government is obliged to take the necessary measures to maintain public order, peace and stability of the country, as was the case of the illegal strike and protest of the LRSU.
4. 236. With regard to the formal complaint submitted by the enterprise against 18 female workers, including the LRSU President, the Government indicates that it is communicating with the enterprise to obtain more details in this respect and will inform the Committee.

D. The Committee’s conclusions

1. 237. The Committee recalls that this case concerns allegations of retaliation, anti-union discrimination and dismissals, and arrest and detention of 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. 238. Concerning recommendation (a) (release of Chhim Sithar, the LRSU President, and judicial decisions relating to the detention of LRSU members), the Committee recalls that following a workers’ strike in December 2021 and January 2022, 29 striking workers were arrested, 9 of whom were charged with incitement to commit a felony or to disturb social security, convicted, and sentenced to serve from one to two years in prison, including Chhim Sithar, the LRSU President (sentenced to two years in prison in May 2023). The Committee notes that while the judicial decisions sentencing the LRSU members were not submitted with the Government’s report, it sent a clarification judicial note from the Phnom Penh Court of First Instance, in which the court: (i) recalled that the actions of Chhim Sithar amounted to incitement to cause serious disruption to national security, punishable as a criminal offence; and (ii) clarified that she had been arrested the second time in November 2022, after she had left the country without prior notification and permission from the court authorities, in violation of her bail conditions during the investigation of her case. The Committee observes from the clarification note that the court considered excerpts of voice recordings of the LRSU President as evidence of actions amounting to incitement to cause serious disruption to national security. While it does not have access to the full transcripts, the Committee notes that the excerpts contained in the clarification note refer to preparations for demonstrations, including timing and goals, as well as instructions to workers to act in unison, to continue to protest until their problems are resolved and to respond to violence by non-violence, while highlighting that the protesters may be violently suppressed or arrested. The Committee notes the Government’s indication that the Appeal Court and the Supreme Court both upheld Chhim Sithar’s conviction in October 2023 and May 2024, respectively. The Committee however notes the Government’s indication that Chhim Sithar was released from detention in September 2024 after having completed her two-year sentence. Recalling that the International Labour Conference has pointed out that the right of assembly, freedom of opinion and expression and, in particular, freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers, constitute civil liberties which are essential for the normal exercise of trade union rights (resolution concerning trade union rights and their relation to civil liberties, adopted at the 54th Session, 1970) [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 77], and regretting that Chhim Sithar was forced to serve her full sentence, despite the repeated recommendations of this Committee, the Committee trusts that the LRSU President will be able to freely engage in legitimate trade union activities without any threat to her basic civil liberties or trade union rights.
3. 239. With regard to the detention of eight other LRSU members and in the absence of the full judicial decisions, which could shed further light on the justification and circumstances in which the LRSU members were arrested and sentenced to imprisonment, the Committee is obliged to recall once again 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 [see Compilation, para. 971]. The Committee further observes that the detention of LRSU members was also addressed by the Committee of Experts on the Application of Conventions and Recommendations (CEACR) and raised in the discussion by the Committee on the Application of Standards (CAS) in relation to the application of Convention No. 87, where the Government was urged to ensure that no criminal charges or sanctions are imposed in relation to the peaceful exercise of trade union activities and that trade unionists detained for undertaking legitimate trade union activity are immediately released. The Committee trusts that any remaining charges against LRSU members have been dropped and, should this not be the case, calls on the Government to furnish detailed information on any further actions taken in this regard.
4. 240. In relation to recommendation (b) (recognition of LRSU officers elected in April 2022, union representation of its members and transfer of membership dues), the Committee notes that the Government does not provide any new information in this regard and simply reiterates its previous reply, pointing to the non-compliance of the April 2022 elections with the applicable legislation, due to the fact that some union leaders and voters were not considered as employed by the enterprise, justifying the freezing of union dues and encouraging the LRSU to rectify the registration documents and resubmit its application. The Committee must recall its previous conclusions that the consideration of the request for recognition of the April 2022 election of LRSU officers should have taken into account that the employment status of the voting members and the elected officers 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 that therefore, a strict application of articles 4 and 9 of the LTU concluding that the elected leaders, as well as some participants who joined in the election, were no longer employed by the enterprise should not apply. Further recalling that workers and their organizations should have the right to elect their representatives in full freedom and the latter should have the right to put forward claims on their behalf [see Compilation, para. 586], the Committee 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, including to make representations on behalf of its members and to represent them in respect of their individual grievances.
5. 241. Concerning the allegations that the enterprise refused to release collected union dues to the LRSU since May 2022, the Committee recalls that a considerable delay in the administration of justice with regard to the remittance of trade union dues withheld by an enterprise is tantamount in practice to a denial of justice [see Compilation, para. 702]. The Committee further notes the additional allegations in this regard that, in February 2024, the enterprise offered to return the dues collected for the past 21 months to current union members individually if they resigned from the LRSU. In the absence of any information on this issue from the Government and bearing in mind the Committee’s previous conclusion that retention of collected dues, together with the non-recognition of LRSU officers, effectively impedes the union’s ability to defend its members and could result in the entire eradication of the union [see 401st Report, para. 266], the Committee urges the Government to ensure that the necessary steps are taken so that members’ dues which have been withheld are duly transferred to the union without further delay and that they are not used as a means to coerce workers to withdraw their union membership. The Committee expects the Government to take proactive measures to address this long-standing issue and to keep it informed of any developments in this respect.
6. 242. With regard to recommendation (d), which concerns investigations into the allegations of various acts of anti-union discrimination and interference alleged in the complaint, the Committee notes that the Government does not provide any information on this matter. The Committee observes the additional allegations submitted by the complainant in this regard, referring, in particular, to the termination in November 2023 of 72 workers who had participated in the 2021–22 strike and who, after having complied with the enterprise’s demand to return to work under the penalty of termination, had been separated from the other workers since March 2022, supposedly pending investigation into their involvement with the LRSU. The Committee notes with concern that they were allegedly told that they could either keep their jobs if they ceased all union engagement and terminated their LRSU membership or, if they continued union engagement, they would be instructed to sign a mutual agreement to terminate their contract. Four unionists who refused to sign the agreement were reportedly escorted out of the building and their identification cards were confiscated. Recalling that direct threat and intimidation of members of a workers’ organization and forcing them into committing themselves to sever their ties with the organization under the threat of termination constitutes a denial of these workers’ freedom of association rights [see Compilation, para. 1100], the Committee requests the Government to take the necessary measures to ensure that an independent investigation is carried out into these and the other alleged acts of anti-union discrimination and interference by the employer since the beginning of the dispute and to ensure that, should the allegations be confirmed, adequate compensation is awarded to remedy all damages suffered and to dissuade recourse to anti-union acts in the future. The Committee requests the Government to keep it informed of the outcome of its investigations and all action taken.
7. 243. In relation to recommendation (c), which concerns investigations into the allegations of government, military and police intervention, violence and harassment in the industrial action carried out by the LRSU, the Committee notes that the Government does not elaborate on any actions taken to investigate these serious allegations and simply indicates that if demonstrations involve violent actions, protesters must be held responsible before the applicable law and the Government is obliged to take the necessary measures to maintain public order, peace and stability of the country. While recalling that the principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike [see Compilation, para. 965], the Committee must emphasize that the intervention of the police should be in proportion to the threat to public order. Furthermore, in cases in which the dispersal of public meetings by the police has involved loss of life or serious injury, the Committee has attached special importance to the circumstances being fully investigated immediately through an independent inquiry and to a regular legal procedure being followed to determine the justification for the action taken by the police and to determine responsibilities [see Compilation, para. 104]. In the absence of a clear commitment from the Government in this regard, the Committee once again urges the Government to take the necessary steps to ensure that an independent investigation is undertaken into the detailed allegations provided by the complainants in respect of government, military and police intervention, and violence and harassment in the industrial action carried out by the LRSU. The Committee requests the Government to keep it informed of the measures taken in this regard.
8. 244. Regarding recommendation (e), which concerns the formal complaint filed by the enterprise against 18 female strikers, including Chhim Sithar, for, among others, breaking, entering and intentionally causing damage, the Committee notes the Government’s indication that it is communicating with the enterprise to obtain more details in this respect and will inform the Committee. The Committee therefore expects the Government to provide updated information in this regard and also requests the complainants to provide any further relevant updates on this issue.
9. 245. 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.

The Committee’s recommendations

1. 246. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Regretting that Chhim Sithar was forced to serve her full sentence, despite the repeated recommendations of this Committee, the Committee trusts that the Labor Rights Supported Union of Khmer Employees of Naga Hotel (LRSU) President will be able to freely engage in legitimate trade union activities without any threat to her basic civil liberties or trade union rights.
   • (b) The Committee trusts that any remaining charges against LRSU members have been dropped and, should this not be the case, calls on the Government to furnish detailed information on any further actions taken in this regard.
   • (c) The Committee 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, including to make representations on behalf of its members and to represent them in respect of their individual grievances.
   • (d) The Committee urges the Government to ensure that the necessary steps are taken so that members’ dues which have been withheld are duly transferred to the union without further delay and that they are not used as a means to coerce workers to withdraw their union membership. The Committee expects the Government to take proactive measures to address this long-standing issue and to keep it informed of any developments in this respect.
   • (e) The Committee requests the Government to take the necessary measures to ensure that an independent investigation is carried out into the new allegations of anti union acts in November 2023 and the other alleged acts of anti-union discrimination and interference by the employer since the beginning of the dispute and to ensure that, should the allegations be confirmed, adequate compensation is awarded to remedy all damages suffered and to dissuade recourse to anti-union acts in the future. The Committee requests the Government to keep it informed of the outcome of its investigations and all action taken.
   • (f) The Committee once again urges the Government to take the necessary steps to ensure that an independent investigation is undertaken into the detailed allegations provided by the complainants in respect of government, military and police intervention, and violence and harassment in the industrial action carried out by the LRSU. It requests the Government to keep it informed of the steps taken in this regard.
   • (g) The Committee expects the Government to provide updated information on the nature of the charges filed by the enterprise against 18 female strikers, including Chhim Sithar, and the current status of these cases. It also requests the complainants to provide any further relevant updates in this regard.
   • (h) 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.