2011 Annual Survey of violations of trade union rights - Cambodia
|Publisher||International Trade Union Confederation|
|Publication Date||8 June 2011|
|Cite as||International Trade Union Confederation, 2011 Annual Survey of violations of trade union rights - Cambodia, 8 June 2011, available at: http://www.refworld.org/docid/4ea6621d2.html [accessed 18 May 2013]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Capital: Phnom Penh
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138
Anti-union practices and obstacles to organising remain widespread. Collective bargaining is rare and difficult. Cambodia has still not established labour courts and impunity continues to be the rule when it comes to trade union rights violations. Eight hundred and seventeen workers were suspended or fired for taking part in a nationwide strike in September.
TRADE UNION RIGHTS IN LAW
Despite initial guarantees, many restrictions apply to trade union rights. Workers are free to form and join trade unions under the 1997 Labour Law, however civil servants and domestic staff are excluded from the law. All union leaders must have been engaged in the occupation their union represents for at least one year, and must be at least 25 years of age and have no criminal record. While the law recognises the right to collective bargaining and obliges employers to bargain, the authorities may refuse to grant most representative status to a union when the Labour Advisory Committee, the employer, or concerned third parties object to the union's petition. Trade unions are further undermined by the fact that each workplace with over eight employees must have a shop steward, who has the duty to perform functions that should be in the hand of elected union leaders – who lack similar enforceable rights. Furthermore, all industrial disputes are subject to cumbersome dispute resolution procedures. A minimum service is imposed in all enterprises, regardless of whether they are public utilities or not, and regardless of whether the minimum service exceeds the need to comply with statutory safety requirements.
TRADE UNION RIGHTS IN PRACTICE AND VIOLATIONS IN 2010
Background: Whilst the government attempts to promote a better image of the Cambodian judiciary through the Khmer Rouge trials, it is placing ever greater restrictions on the exercise of individual rights and freedoms. The increasingly autocratic rule of Prime Minister Hun Sen and his Cambodian People Party (CPP) is leaving very little space for opposition. It has become dangerous for civil society organisations to criticise the government.
Many people in rural and urban areas are being forced to give up their homes and land to make way for lucrative development projects. Hundreds of thousands of families are harmed in the process, as the legislation regulating land disputes is poorly applied or simply disregarded. Property developers, business interests and the authorities join forces to evict residents, forcing them to accept miserly compensation. Like trade unionists, activists fighting to defend land rights risk arrest and prosecution for "defamation", "incitement to crime" or "material damages".
Still no labour courts: Labour courts have still not been set up, despite being provided for in the Cambodian Labour Law (1997). Any legal action has therefore to be taken before a civil or criminal court, which is often a lengthy process (up to eight years in some cases).
The Arbitration Council, a tripartite body created under the labour legislation, has effectively taken the place of the Labour Courts. It is widely respected for its even-handed and impartial investigations and rulings. However, employers found to have engaged in anti-union discrimination usually appeal against the Council's decisions in the provincial courts. Moreover, employers often choose not to apply the Council's recommendations (see court decisions).
An important agreement was, however, signed on 28 September between six major union confederations and federations and the Garment Manufacturers Association in Cambodia (GMAC). It stipulates that in the absence of a collective agreement at a company, the parties shall accept the binding recommendations of the Arbitration Council in rights disputes, and where there is a collective agreement, any dispute regarding its application shall also be the object of binding arbitration. The agreement came into force on 1 January 2011.
In November, the ILO Committee on Freedom of Association called on the government to take action to provide capacity building for the judiciary and to institute safeguards against corruption in order to guarantee the independence and effectiveness of the judicial system.
Trade union rights violated with impunity: In spite of some progress thanks to initiatives such as ILO projects and the efforts of certain international buyers, working conditions and respect for trade union rights in the clothing industry (Cambodia's biggest sector) are still poor, particularly in subcontracted operations.
In many factories, trade unionists continue to face serious repression, including death threats, dismissals, blacklisting, false charges to bring them before the courts, wage deductions and exclusion from promotion, etc. The government very rarely prosecutes or imposes penalties on employers for anti-union practices. Labour inspectors are poorly trained and, given their low pay, are open to bribery.
The Coalition of Cambodian Apparel Workers Democratic Union (C.CAWDU) reported the suspension or dismissal of 257 of its trade union leaders during 2010. In the case of the Free Trade Union of Workers of the Kingdom of Cambodia, the total reaches 65 (32 of whom are women), and includes ordinary members. The FTUWKC also reported physical attacks and threats against six of its members and trade union representative during 2010.
Intimidation used to stop strikes and demonstrations: Unions planning to hold a strike or demonstration often face intimidation. They can, for example, be threatened with prosecution: there is a growing trend among employers of taking trade union representatives to court in the event of a strike and demanding the payment of astronomical sums supposedly in compensation for the losses incurred during the work stoppage. The heavy presence of armed police, ready to use force, is another method used to intimidate striking workers, even though violent strikes are very rare.
Collusion between some employers and the police can be enough to dissuade workers from going on strike. Many workers' demonstrations are cancelled owing to acts of intimidation and harassment by employers or the local authorities, which are often closely linked.
Yellow unions: The establishment of yellow unions is another tactic deployed by some companies to prevent the emergence of genuine workers' representation.
Short term contracts becoming widespread and weakening trade unions: Many permanent contracts are being replaced by short-term contracts (one to six months) allowing employers to avoid having to respect a range of workers' rights guaranteed under the labour legislation (annual leave, maternity leave, etc.). Furthermore, workers are reluctant to join unions for fear of not having their contract renewed.
No civil service unions: Civil servants do not have the right to unionise. Teachers, for example, are only represented by an "association" that cannot engage in collective bargaining. The ILO has criticised this ban on many occasions. The Cambodian Independent Teachers Association has very limited scope for action. In October, for example, the Phnom Penh city authorities refused to let it hold a march to celebrate World Teachers' Day.
Phnom Penh waste collectors deprived of a union: Cintri, a waste collection firm in Phnom Penh, has been intimidating workers to prevent them from meeting with the Cambodian Food and Service Workers' Federation (CFSWF), which is trying to organise them into a union. CFSWF representatives tried to speak to the workers in the street at the end of their working day, but their superiors intervened, warning them not to speak to unions. In January, Cintri workers nonetheless elected a trade union representative, but the latter went on to leave the union a week later, probably under pressure from the management.
Anti-union repression persists at Naga World casino hotel: In February 2009, the management at Naga World casino hotel dismissed 14 leaders and members of the Cambodian Tourism and Service Workers' Federation (CTSWF), including two workers who were several months pregnant (see 2010 edition of the Annual Survey). In February 2010, the Arbitration Council adopted a non-binding recommendation calling for the reinstatement of the four people dismissed who had not given up their trade union activities, but the management at Naga World totally disregarded it. It continued down the path of anti-union repression in 2010: on 12 and 13 March it dismissed 44 members of the CTSWF. The union has reported acts of intimidation against its other members at Naga World. It tried to meet with management on numerous occasions in 2010, to no avail.
Police try to block trade union forum: On 25 July, the police attempted to stop the holding of a forum organised in Phnom Penh by the Cambodian Labour Confederation (CLC) and the Cambodian National Confederation (CNC). The forum was aimed at raising public awareness about the need for a pay rise in the garment sector, and discussing the possibility of strike action with workers in the event that their demands should not be met. The police blocked access to Wat Botum Park, where the forum was due to be held, but thousands of workers made their way on foot, covering long distances, to gather in front of the parliament. The police confiscated megaphones and loudspeakers, but the trade union leaders were able to recover them and managed to go ahead with the forum.
E-Garment trade union representatives attacked and dismissed: On 31 July, as Coalition of Cambodian Apparel Workers' Democratic Union (C.CAWDU) representatives met with workers from the E-Garment factory in Kandal province to collect their signatures (in the form of fingerprints) in support of the campaign to demand a living wage, they were attacked by members of a union renowned for being close to the management, the Khmer Youth Union Confederation (KYUC). Two C.CAWDU representatives were seriously injured in the attack. Following this incident, E-Garment's management sacked eight C.CAWDU union representatives.
KC Gecin acts above the law: The Building and Wood Workers Trade Union of Cambodia (BWTUC) tried to organise a union at construction company KC Gecin Enterprises by inviting its workers to seminars on the labour legislation and trade union rights. As soon as it heard about the seminars, KC Gecin's managers threatened to dismiss anyone trying to form a union. It sought out the employees most interested in defending their trade union rights and, on 3 August, sacked 26 workers belonging to a union. This repression failed to dissuade the other workers: on 12 August, they notified the management that they had formed a union. The next day, the company fired 26 other workers, including the union's founders. A strike was launched on 16 August to demand the reinstatement of the dismissed workers and protest against the anti-union harassment, but KC Gecin once again responded by sacking 12 more union members. It also took six trade unionists to court, claiming as much as 75,000 dollars in damages for losses caused by the strike. The Arbitration Council adopted a recommendation that the employer should reinstate the dismissed workers, but the company refused to comply.
San Lei Fung suspends three trade unionists following strike: A strike broke out on 17 August at the San Lei Fung garment factory following the breakdown in negotiations between the management and the union. At the end of the strike, the company refused to let three of the workers back to work – the union's president, Ouen Pao, an advisor, Huy Bora, and an assistant, Nun Chamna. On 1 September, San Lei Fung accused them of having incited the workers to cause material damage to the factory, and filed court proceedings to claim 50,000 dollars in damages and 10,000 in compensation. The three men affirm that nothing was damaged during the strike. They in turn appealed to a court to demand their reinstatement within the company and on 3 November a municipal judge ordered their return to work. San Lei Fung refused to abide by the court order and went to appeal. At the end of 2010, the workers continued to be suspended.
Threats against Ath Thorn: Anonymous phone calls were made to colleagues of Ath Thorn, president of the Cambodian Labour Confederation (CLC) and the Coalition of Cambodian Apparel Workers Democratic Union (C.CAWDU), threatening the union leader. The calls were made on 17 and 28 August, shortly prior to the holding of a nationwide strike in the garment sector. In the call made on 28 August, at 5.15 p.m., the anonymous caller told Ath Thorn's colleague to pass on this message: "Tell your boss not to be too strong, to watch out." In light of the three union leaders murdered over recent years in Cambodia, these threats have to be taken very seriously.
817 workers sacked or suspended after taking part in national strike in September: From 13 to 16 September, a national strike was held by the Cambodian Labour Confederation (CLC) and the Cambodian National Confederation (CNC) in support of their demand for the minimum wage to be raised to a living wage of 93 dollars a month in the garment sector. The numbers supporting the strike went from 63,000 on the first day to over 200,000 workers, from over 100 garment factories, by the last day on 16 September. Ten trade union leaders were briefly arrested during the strike, 28 workers were injured (following police intervention and, in three cases, after factory vehicles ran into striking workers). The strike came to an end when the government promised to bring trade unions and employers to the negotiating table. On returning to work, 817 employees were informed that they had been sacked or suspended for taking part in the strike. Four hundred and ninety nine of them were subsequently reinstated but at the end of 2010, 318 workers from 16 factories still had not been able to return to their jobs. Eighty two of them are trade union leaders. The government of Cambodia and a Court of Justice have, however, stated that the companies should reinstate the 318 workers. The employers have, moreover, filed dozens of legal complaints against union leaders, demanding compensation for losses linked to the strike.
Whitex fires 30 employees following strike action: In September, the Whitex garment factory in Phnom Penh suspended five trade union representatives and six union members, and dismissed 19 women workers belonging to a union. The workers are members of the Cambodian Federation for Workers' Rights (CFWR), as well as a union only represented within Whitex. The company paid no heed to the opinion issued by the Arbitration Council recommending that the 30 workers be reinstated.
Extremely violent attack against union president at International Generation: On the evening of 30 September, Phao Sak, president of the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC) at the International Generation Co. footwear factory in Trapeang Ample (Samrong Tomng district, Kampong Speu province) was violently attacked by two individuals armed with batons. In the days prior to the assault he had met with the factory's management on several occasions to discuss demands related to leave days. No serious police inquiry was conducted. According to the FTUWKC, the attack was so violent that it could be deemed an attempted murder and is clearly linked to Phao Sak's trade union activities.
Four trade union leaders fired at Zhen Yun: On 15 November, the Zhen Yun garment factory in Phnom Penh dismissed four members of the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC) who had been elected as union leaders four days earlier: the president, Seng Bora, the vice president, Kem Kimhuy, the general secretary, Moern Sina and the treasurer, Maul Srey. Following a three-day strike, the management agreed to reinstate them on the proviso that they cease all trade union activities. The four workers accepted this condition, but continued with their trade union work. On 12 December, on leaving the factory after working overtime, Seng Bora was attacked and hit in the head by a large stone. When his injuries had healed and he was able to return to work, he was once again dismissed (on 14 December), along with Kem Kimhuy (on 15 December).
Union leader framed after switching affiliation: On 18 November, the staff of around 1,000 workers at the United Apparel Garment factory affiliated to the Independent & Democratic Union Federation (IDUF) decided to leave the federation, considering it too close to the employers, and join the Coalition of Cambodian Apparel Workers' Democratic Union (C.CAWDU). Just over two hours after signing the documents indicating this change, the union leader, Sous Chantha, was stopped at a roadblock manned by military police as he made his way home by motorbike. The police searched his motorbike and found nine small packs of pills under the seat. Sous Chantha was immediately arrested and remanded in custody for drug trafficking. He was still being held in custody at the end of December. Inconsistencies in the military police report, however, point to the fact that Sous Chantha was framed as punishment for having switched union affiliation.
Union-bashing by two major breweries: In December, Cambodia Brewery Limited (CBL), in which Heineken has a 33.5% stake, used intimidation to stop beer promotion workers, commonly referred to as "beer girls", from taking part in a meeting their union had invited them to. The brewery refuses to negotiate with their union, the Cambodian Food and Service Workers' Federation (CFSWF). On several occasions, CBL beer promotion workers were called in by their superiors to tell them that one or another union meeting was illegal and that the company is not responsible for their safety if anything happens to them. In the context of Cambodia, where three trade union leaders have been murdered in recent years, warnings of this kind constitute serious intimidation.
Cambrew Ltd, a brewery 50% owned by Carlsberg, also refuses to negotiate with the CFSWF. Cambrew Ltd promotes a yellow union and intimidates beer promotion workers wanting to join the CFSWF, telling them that if they do so they will "break the rice bowl", an expression meaning they will lose their income (implying they will be dismissed). Several beer promotion women elected as CFSWF representatives at the brewery left the union under pressure from the management.
Police threaten trade unionist sacked by Kampot Cement: On 17 December, the newly elected president and treasurer of the union at Kampot Cement, Chhun Peou and Tep Mao, were dismissed after refusing to be transferred to much lower positions. The police visited Chhun Peou's home on several occasions and threatened his family, insisting that no union action should be taken in protest at the dismissals. The workers at Kampot Cement are affiliated to the Building and Wood Workers Trade Union of Cambodia (BWTUC). The cement works is located in Kampot province.
Documentary on murder of Chea Vichea banned: On two occasions in 2010, the authorities prohibited the Cambodian Confederation of Unions from publicly showing the documentary "Who Killed Chea Vichea?". The documentary covers the murder in 2004 of the FTUWKC (Free Trade Union of Workers of the Kingdom of Cambodia) leader, Chea Vichea. It raises awkward questions for the government, underlining that the murder would not have been possible without the highest levels of the political establishment being aware of it.
Murderers of three union leaders remain unpunished: In November, the ILO Committee on Freedom of Association reiterated its call on the government to immediately conduct an in-depth and independent inquiry into the murders of trade union leaders Chea Vichea, Ros Sovannareth and Hy Vuthy (see 2010 edition of the Annual Survey). As regards Thach Saveth, who is serving a 15 year jail sentence for the murder of Ros Sovannareth following an unfair trial, fraught with irregularities, the Committee called on the government to guarantee his right to an appeal before an impartial and independent judicial authority.
Assorted anti-union intimidation: Several other cases of anti-union intimidation were reported during the course of the year. The Cambodian Federation of Independent Trade Unions (CFITU) denounced acts of intimidation against Put Kosal, the vice president of its branch union at the King Maker Foot Wear factory in Svay Rieng province. The Cambodian Workers Force Democratic Federation Union (CWFDFU) reported cases of intimidation against its members at the Cambo Handsome 1 garment factory. Threats against Phnom Penh Hotel workers showing interest in trade union activities were also reported by the Cambodian Tourism and Service Workers' Federation (CTSWF).