The law provides for the right of private-sector workers to form and join trade unions of their own choice without prior authorization, the right to strike, and the right to bargain collectively. The National Assembly adopted a new Law on Trade Unions (TUL) on April 4. Before going into full effect, the TUL requires the publication of nine implementing regulations, crucial in the interpretation of the TUL; four had been issued as of November. The TUL also calls for implementing legislation on the establishment of a labor tribunal.
The TUL imposes new limits on the right to strike, facilitates government intervention in internal union affairs, excludes certain categories of workers from joining unions, and permits third parties to seek the dissolution of trade unions, while imposing only minor penalties on employers for unfair labor practices. The law requires trade unions to file their charters, lists of officials, and banking details with the Ministry of Labor and Vocational Training. The TUL forbids unregistered unions from operating. The ILO offered, and the government accepted, an ILO “direct contacts mission,” expected in the first quarter of 2017, to provide guidance on compliance with international standards.
Civil servants, teachers, workers employed by state-owned enterprises, and workers in the banking, health-care, and informal sectors may form only associations under the LANGO, not trade unions. The ILO continued to request the government to provide for the right of public employees to freedom of association and collective bargaining. Personnel in the air and maritime transportation industries are free to form unions but are not entitled to social security and pension benefits and are exempt from the limitations on work hours prescribed by law.
Regulations on collective bargaining require one single union within an enterprise to demonstrate “most representative status” (MRS), meaning that the union represents the largest number of workers in a bargaining unit and at least 30 percent of all workers in an enterprise. Once a union has obtained MRS, no other union can represent workers in collective disputes. The TUL allows third parties to raise objections to granting a union most representative status, however, and these objections can form the grounds for government refusal of status. The ILO noted that allowing third party objections runs counter to internationally agreed labor rights related to freedom of association and collective bargaining. Once a union achieves MRS, the law then requires employers to negotiate once the union proposes a collective bargaining agreement. The law binds both parties to agree to an orderly bargaining process and to propose reasonable offers and counteroffers. Employers must provide facilities to conduct union activities and all information relevant to the bargaining process at the request of the union.
The law stipulates workers can strike only after several requirements have been met, including: the successful registration of a union, the failure of other methods of dispute resolution (such as negotiation, mediation, or arbitration), a minimum of 60 days following the emergence of the dispute, a secret-ballot vote of the union membership, and seven days’ advance notice to the employer and the labor ministry. The TUL states that the decision by a union to strike requires approval by an absolute majority of union members attending a strike meeting. The meeting must include a quorum of an absolute majority of the total union members. Once a union has successfully carried out a strike vote, the court has the power to issue an injunction against the strike and require the restart of negotiations with employers.
State enforcement of the right of association, including freedom from antiunion discrimination, and of collective bargaining rights was highly inconsistent. The law provides for a maximum fine of 5 million riels ($1,250) for violations of freedom of association and collective bargaining provisions; nevertheless, acts of antiunion discrimination, intimidation, and retaliation by employers or members of government-aligned unions generally went unpunished. Close relationships among government officials, employers, and union leaders, particularly those operating progovernment unions, limited the government’s willingness to address violations of workers’ rights. These relationships deterred union leaders from reporting cases of discrimination and hampered the independent operation of unions, since the majority of the country’s unions were affiliated with the ruling party, and only a minority were affiliated with the opposition party or work independently. The government did not devote sufficient resources to enforcement, particularly to the provision of training and resources to provide a functioning labor inspectorate.
In cases of collective labor disputes, the labor ministry’s Department of Labor Disputes first attempts to settle the disputes. The department refers unresolved cases to the Arbitration Council, a state body that operates on donated funds and interprets labor regulations in collective disputes--such as when a single entity dismisses multiple employees. In general, prior to a hearing by the Arbitration Council, parties may choose whether to consider the council’s decisions as binding or not. If neither party objects to the arbitral award within eight days of its issue, then the dispute is considered resolved.
Many of the cases that the Arbitration Council reviews were in the textile and apparel industry. The majority of council rulings were not binding following the expiration in 2014 of a 2012 Memorandum of Understanding between the Garment Manufacturers in Cambodia (GMAC) industry group and eight union federations, which committed factories and workers to accept the rulings of the council. Since 2014 the signatories to the memorandum met three times to consult with each other regarding labor law issues. Some unions urged the government to expand the role of the council to include individual and collective-interest disputes and to make its decisions uniformly binding.
The labor ministry’s official dispute resolution procedure calls for conciliation first, followed by arbitration. In practice, however, the resolution of collective disputes was inconsistent. The creation of a Committee for the Settlement of Strikes and Demonstrations to deal with strike-related disputes has led to jurisdictional uncertainty with the Department of Labor Dispute Resolution. In some cases the ministry declined to engage in legal dispute resolution procedures altogether, instead sending a letter to the court seeking intervention. In other cases the ministry referred cases to the Arbitration Council without required paperwork, thus leaving these disputes unresolved.
Individual labor disputes may be brought before the courts, although the judicial system is neither impartial nor transparent. There is no specialized labor court, but as mandated by the TUL, the labor ministry committed to establish such courts (called labor tribunals) under its own jurisdiction by 2017. Debate continued over the composition and function of these labor courts, and as of December 13, the ministry had not clarified the nature of their relationship to the Arbitration Council.
Workers reported various obstacles while trying to exercise their right to associate freely. Some employers reportedly refused to sign notification letters to officially recognize unions (a situation for which the government offered no official redress), or to renew short-term contract employees who had joined unions. Moreover, many workers were hired into the garment sector as subcontractors, making unionization difficult.
Organization among public-sector workers continued to face significant obstacles. For example, the Cambodian Independent Teachers Association is registered with the Ministry of Interior as an “association” due to prohibitions on public-sector unions, and the government denied its requests for permission to march and protest. Another public-sector association, the Cambodian Independent Civil Servants Association, claimed fear of harassment, discrimination, or demotion deterred individuals from joining.
There were credible reports of antiunion harassment by employers, including the dismissal of union leaders in garment factories and other enterprises. Better Factories Cambodia (BFC), an ILO and International Monetary Fund program that inspects all factories holding export licenses, noted in its May 2015 to April report that 6.8 percent of factories deducted union dues without the free consent of workers, or prevented workers from forming or joining a union without the threat of termination. BFC also found that 2.9 percent of the factories examined interfered with workers or unions when they draw up their rules, hold elections, and organize their administration, and 2.9 percent of factories made significant efforts to bring unions under company control. BFC’s coverage is limited to the export sector; the actual level of union harassment industry-wide was likely higher, including dismissals, especially of union leaders; abuse of short term contracts; and physical harassment. Human Rights Watch recently reported that garment workers laboring in unregistered factories--most often subcontractors for larger, export-oriented factories--were far more vulnerable to abusive labor practices that violate local and international law. According to Human Rights Watch, “Some of the worst problems we documented took place in these subcontractor factories, and there should be a stronger emphasis on expanding inspections to them.”
No one was held responsible for the violence perpetrated against union protesters in 2014, which left five dead and dozens seriously injured. Many in civil society did not deem the government committees established to investigate these attacks credible. The ILO urged the government to release its own findings and conclusions to public scrutiny.
Following violent labor protests in 2013, GMAC filed complaints in the Phnom Penh Municipal Court against six independent union federations, alleging the federations had incited workers to protest violently, resulting in damage to factory property and production. The court placed the union leaders under court supervision, barred them from joining or organizing any protests, moved them to a new address without notice, and ordered them to show up at a local government authority office on a monthly basis. As of December this order remained in effect. Criminal charges against the six independent trade union presidents were still pending as well. Worker leaders alleged that the politically influenced court continued to keep the cases pending to intimidate the independent union movement.
There were credible reports of workers dismissed on spurious grounds after organizing or participating in strikes. While the majority of strikes were illegal, participating in an illegal strike was not by itself a legally acceptable reason for dismissal. In some cases employers pressured either unionists or strikers to accept compensation and leave their employment by reasoning that their short-term contracts had ended.
The union movement did not generally believe that remedies for such dismissals were effective. For example, the labor ministry issued a number of reinstatement orders, but these often provoked management efforts to pressure workers into resigning in exchange for a settlement. At times management failed to obey court orders for reinstatement. For example, in July 2015 the management of Capitol Tour Bus Company dismissed five union leaders a few days after they sought approval from the ministry to form a trade union. They were never rehired, despite a July 30 Arbitration Council ordering their reinstatement. By August 2015, 45 union leaders and members at the company had been dismissed because of their trade union activity. In February thugs dressed in black clothing and wearing helmets brutally attacked protesting workers from the bus company.