Demande directe (CEACR) - adoptée 2016, publiée 106ème session CIT (2017)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Cambodge (Ratification: 1999)

Autre commentaire sur C087

Observation

Demande directe

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The Committee notes that the Law on Trade Unions (LTU) was promulgated on 17 May 2016.

Article 2 of the Convention. Right of workers to establish organizations without previous authorization. Section 13 of the LTU: Requirements for statutes. The Committee notes that this section sets detailed requirements to include in union statutes. It recalls that national legislation should only lay down formal requirements respecting trade union constitutions, and that provisions which go beyond these formal requirements may constitute interference contrary to the right of workers’ organizations to draw up their constitutions and rules by virtue of Article 3 of the Convention. The Committee is of the view that a number of requirements in section 13, detailing specific quorums or ballot for certain decisions, go beyond formal requirements and the determination of these matters should be left to the decision of the trade union itself. The Committee requests the Government to consult with the social partners with a view to removing these requirements which unduly restrict the right to draw up constitutions and rules without interference from the public authorities.

Article 3. Right to elect representatives freely. Section 20 of the LTU: Requirements for leaders, managers, and those responsible for the administration of unions. Under this provision, potential candidates – either nationals or foreign nationals – should meet a minimum age requirement (18), minimum literacy requirements and make a declaration that they have never been convicted for any criminal offence. With regard to the minimum age and the literacy criteria, the Committee recalls that it considers to be incompatible with the Convention the requirements that candidates for trade union office should have reached the age of majority, or be able to read and write (see the 2012 General Survey on the fundamental Conventions, paragraph 104). Consequently, the Committee requests the Government to take the necessary measures to amend section 20 of the LTU to guarantee the right of minors who have reached the statutory minimum age for wage employment (persons of 15 years of age, under section 177 of the Labour Law) to be candidates for trade union office, as well as to remove the requirement to read and to write Khmer from the eligibility criteria. Furthermore, the Committee recalls that it considers that conviction for an act the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from trade union office (see the 2012 General Survey on the fundamental Conventions, paragraph 106). In this regard, the Committee observes that the Committee on Freedom of Association, in the recent examination of a case, requested the Government to amend section 20 of the LTU and referred this legislative aspect to the Committee (see case No. 3121, 380th Report, paragraph 142). The Committee requests the Government to ensure full respect for this principle by taking the necessary measures to amend section 20 of the LTU accordingly.

Section 21 of the LTU: Requirements for leaders, managers, and those responsible for the administration of employers’ associations. The Committee draws the Government’s attention to the fact that amendments requested above for section 20 concerning trade union office also apply, as relevant, to section 21 concerning employers’ associations office, which contains similar provisions. The Committee requests the Government to take the necessary measures to amend section 21 of the LTU according to the abovementioned principles.

Section 38 of the LTU: Eligibility to vote and to stand as a candidate for the representative election. The Committee draws the Government’s attention to the fact that the amendments requested above for section 20 concerning trade union office also apply to section 38 concerning eligibility criteria to vote and to stand as a candidate for representative elections, which contains similar provisions. The Committee requests the Government to take the necessary measures to amend section 38 of the LTU according to the abovementioned principles on minimum age and literacy requirements.

Article 4. Dissolution of representative organizations. Section 28 of the LTU: Dissolution of unions or employers’ associations. Paragraph 2 of this provision provides that a union is automatically dissolved in the event of a complete closure of the enterprise or establishment. Recalling that the dissolution of a workers’ or employers’ organization should only be decided under the procedures laid down by their statutes, or by a court ruling, the Committee requests the Government to take the necessary measures to amend section 28 of the LTU accordingly by removing its paragraph 2.

Section 29 of the LTU: Grounds to request dissolution by Court. According to this provision, any party concerned or 50 per cent of the total of members of the union or the employer association have the right to file a complaint to the Labour Court to request a dissolution. The Committee considers that the manner in which members may request dissolution should be left to the organization’s by-laws. The Committee requests the Government to take the necessary measures to amend section 29 of the LTU to leave to the unions’ or employers’ associations own rules and by-laws the determination of the procedures for their dissolution by their members. Moreover, according to paragraph (c) of section 29, a union or an employers’ association shall be dissolved by the Labour Court in cases where leaders, managers and those responsible for the administration were found guilty of committing a serious act of misconduct or an offence on behalf of the union or the employer association. In this regard, the Committee is of the view that if it is found that trade union officers have committed serious misconduct or offences through actions going beyond the limits of normal trade union activity, they may be prosecuted under the applicable legal provisions and in accordance with ordinary judicial procedures, without triggering the dissolution of the trade union and depriving it from all possibility of action. The Committee requests the Government to take the necessary measures to amend section 29 of the LTU by removing its paragraph (c).

The Committee trusts that the Government will take fully into account its comments on the LTU and, in consultation with the social partners, take swift action to amend the law accordingly.

Right of employers’ and workers’ organizations to organize their activities and formulate their programmes. In its previous comments, the Committee referred to the need to amend section 326(1) of the Labour Law whereby, in the absence of agreement between the parties on the minimum service in an enterprise where a strike is taking place for the protection of the facility installations and equipment, the ministry in charge of Labour is empowered to determine the minimum service in question. The Committee also requested the Government to provide information on the application in practice of section 326(2) of the Labour Law, in particular any example of the sanctions imposed on workers for serious misconduct. In its reply, the Government states that it is seeking the technical assistance of the Office in order to work on the draft Prakas to clearly resolve the concerns arising from these provisions. The Committee requests the Government to provide information on any progress in this regard.

Anti-corruption law. The Committee had requested the Government to provide a copy of the Act on Anti-Corruption, as adopted, as well as information on the activities of the anti-corruption unit, its strategic plan and any other relevant documentation. The Government reiterates that the Act will be transmitted once translated into English and refers to information publicly available on the activities of the anti-corruption unit.