2008 Annual Survey of violations of trade union rights - Cambodia
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Cambodia, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca9eb.html [accessed 29 November 2015]|
|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
Following the murders of Chea Vichea and Ros Sovannareth in 2004, a third leader of the FTUWKC was shot down in February 2007. Restrictions on the trade union rights of civil servants remain in place, and although private sector workers have seen some improvements, they continue to be confronted with the whole arsenal of anti-union measures when they attempt to defend their rights. The Cambodian judiciary discredited itself further by ordering that the two innocent parties accused of murdering Chea Vichea be kept in prison.
Trade union rights in law
Freedom of association – civil servants excluded: Workers are free to form and join trade unions under the 1997 Labour Law. However, this law does not apply to domestic staff or civil servants, including teachers, judges and military personnel. Personnel working in air and maritime transportation are not fully subject to the law but are free to form unions.
The Labour Law requires unions and employers' organisations to file a charter and list of officials with the Ministry of Labour and Vocational Training (MOLVT). The Bureau of Labour Relations is responsible for facilitating union registration and the application for "most representative" status. The MOLVT is also responsible for enforcing the Labour Code and the application of ILO Conventions.
Excessive eligibility criteria: Article 269 of the Labour Code provides that union leaders must have been engaged in the occupation their union represents for at least one year. This restricts a union's right to choose their own representatives and deprives it of the skills or experience it may not have within its own ranks. The law also requires that union leaders be at least 25 years of age, must be able to read and write, and have no criminal record.
Restrictions on the right to strike: The law guarantees the right to strike but limits that right by imposing a minimum service requirement in all enterprises, regardless of whether they are public utilities or not, and regardless of whether they exceed the need to comply with statutory safety requirements. Workers who are required to provide a minimum service but stay out on strike are considered guilty of serious misconduct.
The requirements which must be fulfilled for a strike to be considered legal are also quite cumbersome; therefore, they are frequently ignored by workers. Disputes must be first subjected to labour conciliation conducted by an inspector of the MOLVT, who has 15 days to seek a settlement. If there is no mutually satisfactory result, the dispute must be submitted to the tripartite Arbitration Council for investigation and a decision, which also must come within 15 days of the dispute being referred to the Council. During the period when the MOLVT is conciliating, or the Council is considering the case, it is illegal to strike.
For a strike to be legal, the union must obtain a majority in a secret ballot of its members. The union must also provide seven days advance notice to the employer and the MOLVT. If the enterprise is engaged in what the government considers an "essential service", then the law stipulates the waiting period must be a minimum of 15 days.
Collective bargaining: The law obliges the employer to negotiate collective bargaining agreements with unions that have been granted "most representative" status, and bargain with minority unions on issues covering members of that union. The employer must meet with representatives designated by the union. Negotiators are protected by law and are entitled to full pay during the negotiations.
A Ministerial regulation promulgated at the end of 2004 has caused significant problems for unions. The regulation allows third parties (such as employers or another union) to challenge the majority union's petition for "most representative" status. By filing these challenges, management/employer groups or pro-management unions can tie up a majority union's time and resources, and prevent it from negotiating a collective bargaining agreement.
Another major problem in law is caused by confusion between the role of shop stewards and labour union leaders. Each workplace with over eight employees must have a shop steward. Shop steward elections are held at the factory, and the law provides that employers are the ones who must organise them. It gives representative unions the right to nominate the shop stewards to stand for election but, often, stewards are elected before a union is organised in a factory. Article 284 gives shop stewards the duty to present employers with issues related to grievances and wages, and to enforce the labour law and collective agreements. These are functions that rightfully belong in the hands of elected trade union leaders. In a number of cases, employers have used factory representatives (who are elected for two years and cannot be forced out) to block the path of unions to the bargaining table, because shop stewards are the only worker representatives with legally enforceable bargaining rights. The labour law fails to provide a similarly enforceable right for trade union leaders.
Trade union rights in practice and Violations in 2007
Background: Prime Minister Hun Sen remains persistent in his attacks on national and international critics of Cambodia's human rights record. He even attacks the ILO when he is not entirely satisfied with its reports on working conditions in the garment sector, inferring that some ILO officers may be corrupt.
Only a small proportion of the total labour force is unionised, and outside the garment and tourism/hospitality sectors, the trade union movement remains very weak. Most workers have little or no knowledge of trade unions, or of their labour rights.
Trade union leader Hy Vuthy assassinated: On 24 February 2007, two helmeted men on motorbikes shot down Hy Vuthy, President of the Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC) at the Suntex garment factory, whilst he was on his way home from work. They threw his body into a rubbish dump before taking flight. The witnesses to the murder refused to speak out for fear of reprisals. Hy Vuthy had received several anonymous death threats in 2006 on account of his union activities. In 2006, three other FTUWKC leaders at the Suntex factory had also been injured in attacks. The Vice President of the union was hit by a bullet in his left leg.
Va Sopheak, Hy Vuthy's widow, is forced to move house with her children on a regular basis, as she has been receiving threats since her husband's assassination. Unidentified persons have thrown stones at her home, and she has been followed on numerous occasions.
Trade union rights violated with impunity: ILO projects such as the Better Factories initiative have contributed to improving respect for freedom of association in Cambodia's main industry, the garment sector. In spite of such initiatives and the efforts of certain international buyers, much still remains to be done before employers will widely accept unions as partners to be engaged with as equals.
In many factories, trade unionists continue to face repression of all kinds, including beatings from hired thugs, death threats, blacklisting, false accusations to bring them before the courts, wage deductions and exclusion from promotion, etc. The government very rarely prosecutes or takes measures against an employer for anti-union practices. In many instances, the Ministry of Labour's advice is for workers to take their case to court – which is costly and ineffective – or to accept cash settlements from employers. Labour inspectors are poorly trained and, given their low pay, open to bribery. In cases where the MOLVT does rule in favour of the workers, it rarely uses its legal authority to penalise employers who fail to follow its orders.
Violence against trade unionists: The hiring of thugs is a tactic regularly used to scare workers fighting for trade union rights. To give one example, on 24 January, at approximately 8:30 pm, Sen Sithourn, FTUWKC General Secretary at the Shoe Premier Factory, was beaten on his way home from work by four or five masked individuals armed with iron rods. Violence is most commonly used against strikers, and in some instances it is the police who are called in to forcefully curb any attempts at trade union action (see below).
Yellow unions: The establishment of yellow unions is another tactic deployed by some Cambodian companies to prevent the emergence of genuine workers' representatives. Several unions genuinely fighting for the workers have condemned the Khmer Youth Trade Union (KYTU) for its conduct in this respect. The Coalition of Cambodian Apparel Workers' Democratic Union (CCAWDU), for example, reported that in June whilst engaged in negotiations with Winner Garments Ltd., a leader of the KYTU threatened the CCAWDU negotiators and gave them a CD concerning unions attacked by the government.
Shorter employment contracts for unionists: Several free trade unions reported that their members were increasingly being hired on short-term employment contracts, to discourage any kind of trade union activity. A rise in the attempts to bribe shop stewards was also reported.
Trade unionists dismissed: In the absence of a government that offers any real protection for trade union rights, some employers summarily dismiss workers identified as trade union activists. The FTUWKC reported the sacking in August of Keo Sokun and Mok Mon, two of its elected representatives at the New Mingda Garment factory in the Dangkao district of Phnom Penh (the management claims that they did not work well and that it had dismissed them prior to discovering that they were union representatives). At the Hong Da garment factory, a member of the Cambodian Union Federation (CUF) was dismissed just days after being elected president of the union at the factory. Thanks to the intervention of the CUF and the International Textile, Garment and Leather Workers' Federation (ITGLWF), he was, however, reinstated some weeks later.
Cambodian justice system continues to discredit itself with its handling of the Chea Vichea murder case: On 6 April 2007, the Court of Appeal held a hearing on the murder of Chea Vichea, the former president of the FTUWKC, assassinated on 22 January 2004. On 12 April, it pronounced its verdict confirming the August 2005 ruling condemning Born Samnag and Sok Sam Oeun to 25 years in prison, despite the Attorney General's recognition that there was insufficient evidence. Everything would indicate that the two men have been used as scapegoats. The police investigations and the judicial proceedings were marked by numerous irregularities. The police beat Born Samnang to force a confession out of him. A judge had initially dismissed the charges against the two but was swiftly removed from his position and the charges were reinstated. The trial that followed constituted a flagrant breach of the laws of Cambodia and the international standards regarding fair trials.
Chea Vichea's family expressed its conviction that Born Samnang and Sok Sam Oeun are not guilty of the crime, as did the main witness at the murder scene, Var Sothy, who has had to flee the country, fearing for his life. The ITUC joined forces with six major international human rights organisations to urge the Cambodian authorities to acquit and release the two innocent men and to carry out a full and impartial investigation into the murder (see the 2006 Annual Survey of the Violations of Trade Union Rights for more details).
The Cambodian authorities have proven equally incapable of clearing up the murder of another FTUWKC leader, Ros Sovannareth, who was shot dead on 7 May 2004 on his way home from work at the Trinunggal Komara factory.
Still no labour courts: The Cambodia Labour Code of 1997 provides in Articles 387, 388, and 389 that a system of Labour Courts shall be created to rule on "individual disputes occurring between workers and employers regarding the execution of the labour contract or the apprenticeship contract". There were continued worker appeals to the government to set up the Labour Court, but these petitions were disregarded.
The Arbitration Council, a tripartite body established under the labour law, has effectively substituted the Labour Courts. The council is widely respected for its even-handed and impartial investigations and rulings. However, its decisions are not final, and employers found to have engaged in anti-union discrimination usually appeal against the council's decisions in the provincial courts.
Strikes repressed: The government generally tolerates strikes, but the police do not hesitate to use violence and make arrests, especially when protests are held outside the workplace. At the beginning of January, the FTUWKC reported that one of its officials, Pul Sopheak, and Eng Vanna, the union leader at PPCTV Co. Ltd, were arrested on public order charges, along with a union activist, Ly Senghorn, following a strike at the factory. They were released four hours later after being forced to commit that they would not organise any more demonstrations.
Another example of repression was seen on 29 November, when the police used violence to disperse a strike supported by hundreds of workers, members of the CCAWDU at the Fortune garment factory in the province of Kandal. They were demanding that the labour legislation be applied. The police accused the strikers of having blocked a road and thrown stones. They fired tear gas, injuring three workers, including a woman, whose leg was wounded by a tear gas bomb. The police also arrested four workers and then released them the same day.
The connivance between some employers and the security forces is often enough to dissuade the workers from going on strike, as was the case on 21 May, at a building site near the Hun Sen park in Phnom Penh: few workers dared to respond to the strike call by the Cambodian National Federation of Building and Wood Workers (CFBW) following a dispute with the China Central Asia Group (CCAG), after the management had threatened them with arrest and imprisonment if they joined the strike.
In some instances, company security guards are also used to suppress industrial action. In April, the FTUWKC, for example, reported that security guards at the Vivatino Design Cambodia factory used violence against its members who were striking to demand the departure of a manager who had mistreated a number of workers. On 4 May, security guards at the LA Garment factory were particularly brutal in their attack on the men and women workers trying to take part in the strike action organised by the FTUWKC. Four workers and five security guards were injured.
Collective bargaining: Collective bargaining is difficult, and only a few unions have achieved an enforceable agreement. It was not until late 2003 – six years after the passage of the labour law – that garment and tourism worker unions won their first proper collective bargaining agreements.
Teachers' association activity obstructed: The Cambodian Independent Teachers Association (CITA) is registered by the Ministry of the Interior as a civic association, but is not recognised by the MOLVT as a trade union, and is not therefore deemed eligible to represent teachers in collective bargaining procedures. The demonstrations and other protests it has organised have often been prohibited. CITA has been a frequent target of harassment, intimidation and surveillance by the government authorities. It only represents 10% of Cambodian teachers, as many fear that joining it would hinder their prospects of a promotion.
Civil servants' association not recognised for bargaining: Like CITA, the Cambodian Independent Civil Service Association (CICSA) is registered as a civic association, but it is not recognised by the government as a union and does not enjoy collective bargaining rights. Its leaders believe that fears of harassment and demotion go some way toward explaining why only around 500 of the 100,000 civil servants in Cambodia are affiliated to it.
Trade unionists reinstated at River Rich thanks to international solidarity: In October 2006, the workers at the River Rich garment factory decided to form a union, mainly to defend themselves against the management's practice of hiring up to 80 per cent of the workforce on temporary contracts. This is common practice in the garment sector and is used as a means of dissuading workers, anxious to see their contracts renewed, from defending their rights. In spite of the intimidation, union elections were held at River Rich, but some days later the management fired the 30 trade union members and representatives.
The CCAWDU requested the help of the global union federation to which it is affiliated, the International Textile, Garment and Leather Workers' Federation (ITGLWF). The ITGLWF had previously concluded a framework agreement with River Rich's biggest customer, the Spanish company Inditex. In January 2007, Inditex and the ITGLWF went to Cambodia and convinced the management of River Rich to reinstate the dismissed workers. River Rich did, however, delay in honouring its commitment. Several strikes took place during 2007 to demand the reinstatement of the trade unionists, but the management called in riot police to break up the strike. On 21 May, the police beat three of the women workers taking part in the union action in front of the factory. The management also tried to bribe a number of trade unionists (common practice in Cambodia). Ath Thorn, the President of the Cambodian Labour Confederation (to which CCAWDU is affiliated), was followed by two unknown armed individuals during the efforts to negotiate with the company.
At the end of May, River Rich had still not reinstated the dismissed trade unionists. The ITGLWF and Inditex had to return to Cambodia and obtained an agreement that went further than the first one: aside from the immediate reinstatement of all the workers wishing to recover their posts, the agreement established the payment of their average salary from the date on which they were dismissed until the end of June 2007. River Rich also committed that no union member would suffer discrimination, that it would drop all legal proceedings against CCAWDU and its members, and that all the fixed-term contracts would be converted into long-term contracts. Twenty five out of the 30 CCAWDU members and leaders regained their posts in June (the five others had either found new jobs in the meantime or had decided to return to their families in rural areas).
Trade union rights ignored at Angkor Wat sites: Several trade unions representing workers involved in projects to restore the Angkor temple complex remain deprived of recognition. These projects are implemented by government teams for safeguarding Angkor, the Japanese government team (JSA) from Sophia University in Tokyo and the Chinese government team for safeguarding Angkor (CSA). A union was also formed to represent the workers employed to conserve the environment around Angkor Wat by ASPARA, an authority set up by the government and which already stood out in 2006 for its anti-union dismissals.
In the face of the organisations' anti-union repression and discrimination, the Cambodian Construction Workers' Trade Union Federation (CCTUF), affiliated to the BWI, filed a complaint with the Labour Ministry regarding their violations of the Cambodian labour legislation at the restoration sites. It has not yet seen any results.
Party links and company-controlled unions: A total of 26 labour federations have historical ties to members of the government or to Prime Minister Hun Sen's political party, the Cambodian Peoples Party (CPP). One example is that of the Cambodia Union Federation (CUF), often criticised for creating house unions in garment factories to serve the interests of employers and government leaders. Four federations are independent and one federation has ties with an opposition party. Intimidation is common practice between rival unions and in some instances leads to violence.
Employers ignore Arbitration Council orders to reinstate dismissed union activists: The Thai-owned Grand Diamond City, located in Poi Pet city on the Thai-Cambodia border, refused to comply with a ruling by the Arbitration Council on 9 March 2006 that it should reinstate 11 activists from the Cambodia Tourism and Service Workers' Federation (CTSWF) who had been unfairly dismissed in 2005. Given the length of time gone by and under pressure from the authorities, most of the activists accepted a small amount in financial compensation in return for dropping any further proceedings.
Similarly, despite rulings by the Arbitration Council in 2004 that it must reinstate the four union leaders, their employer, Himawari Apartment Hotel (formerly known as MiCasa Apartment Hotel), contested the decision and refused to comply. The Labour Ministry's attempt to broker a settlement failed.